10 Saguisag v. Executive Secretary, G.R. No. 212426, January 12, 2016 - Scra

G.R. No. 212426. January 12, 2016.*

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.
G.R. No. 212444. January 12, 2016.*

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
_______________
* EN BANC.

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242 SUPREME COURT REPORTS ANNOTATED

Saguisag vs. Ochoa, Jr.
(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.
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.
Judicial Review; Distinguished from the general notion of judicial

power, the power of judicial review specially refers to both the authority and
the duty of the Supreme Court (SC) to determine whether a branch or an
instrumentality of government has acted beyond the scope of the latter’s
constitutional powers.—Distinguished from the general notion of judicial
power, the power of judicial review specially refers to both the authority and
the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter’s constitutional powers.
As articulated in Section 1, Article VIII of the Constitution, the power of
judicial review involves the power to resolve cases in which the questions
concern the constitutionality or validity of any treaty,

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international or executive agreement, law, presidential decree,

proclamation, order, instruction, ordinance, or regulation. In Angara v.
Electoral Commission, 63 Phil. 139 (1936), this Court exhaustively
discussed this “moderating power” as part of the system of checks and
balances under the Constitution. In our fundamental law, the role of the
Court is to determine whether a branch of government has adhered to the
specific restrictions and limitations of the latter’s power.
Same; Demetria v. Alba, 148 SCRA 208 (1987) and Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., 415 SCRA 44 (2003), cite the “pillars” of the limitations on the power
of judicial review as enunciated in the concurring opinion of United States
(U.S.) Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 346-348 (1936).—Even as we are left with no
recourse but to bare our power to check an act of a coequal branch of
government — in this case the executive — we must abide by the stringent
requirements for the exercise of that power under the Constitution. Demetria
v. Alba, 148 SCRA 208 (1987) and Francisco, Jr. v. Nagmamalasakit na
mga Manananggol ng mga Manggagawang Pilipino, Inc., 415 SCRA 44
(2003), cite the “pillars” of the limitations on the power of judicial review as
enunciated in the concurring opinion of U.S. Supreme Court Justice
Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
Francisco redressed these “pillars” under the following categories: 1. That
there be absolute necessity of deciding a case; 2. That rules of
constitutional law shall be formulated only as required by the facts of the
case; 3. That judgment may not be sustained on some other ground; 4.
That there be actual injury sustained by the party by reason of the
operation of the statute; 5. That the parties are not in estoppel; 6. That the
Court upholds the presumption of constitutionality. (Emphases supplied)
These are the specific safeguards laid down by the Court when it exercises
its power of judicial review. Guided by these pillars, it may invoke the
power only when the following four stringent requirements are satisfied: (a)
there is an actual case or controversy; (b) petitioners possess locus standi;
(c) the question of constitutionality is raised at the earliest opportunity; and
(d) the issue of constitutionality is the lis mota of the case. Of these four, the
first two conditions will be the focus of our discussion.

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Same; Actual Case or Controversy; The performance of an official act

by the Executive Department that led to the entry into force of an executive
agreement was sufficient to satisfy the actual case or controversy
requirement.—We find that the matter before us involves an actual case or
controversy that is already ripe for adjudication. The Executive Department
has already sent an official confirmation to the U.S. Embassy that “all
internal requirements of the Philippines x x x have already been complied
with.” By this exchange of diplomatic notes, the Executive Department
effectively performed the last act required under Article XII(1) of EDCA
before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the
country shall only be allowed by virtue of a treaty concurred in by the
Senate. Hence, the performance of an official act by the Executive
Department that led to the entry into force of an executive agreement was
sufficient to satisfy the actual case or controversy requirement.
Same; Locus Standi; The question of locus standi or legal standing
focuses on the determination of whether those assailing the governmental
act have the right of appearance to bring the matter to the court for
adjudication. They must show that they have a personal and substantial
interest in the case, such that they have sustained or are in immediate
danger of sustaining, some direct injury as a consequence of the
enforcement of the challenged governmental act.—The question of locus
standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the
matter to the court for adjudication. They must show that they have a
personal and substantial interest in the case, such that they have sustained or
are in immediate danger of sustaining, some direct injury as a consequence
of the enforcement of the challenged governmental act. Here, “interest” in
the question involved must be material — an interest that is in issue and will
be affected by the official act — as distinguished from being merely
incidental or general. Clearly, it would be insufficient to show that the law
or any governmental act is invalid, and that petitioners stand to suffer in
some indefinite way. They must show that they have a particular interest in
bringing the suit, and that they have been or are about to be denied some
right or privilege to which they are lawfully entitled, or that they are about
to be subjected to some burden or penalty by reason of the act complained
of. The reason why those who challenge the validity of a law or an
international

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agreement are required to allege the existence of a personal stake in the

outcome of the controversy is “to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.”
Same; Same; Taxpayers’ Suit; The Supreme Court (SC) emphasizes
that a taxpayers’ suit contemplates a situation in which there is already an
appropriation or a disbursement of public funds. A reading of Article X(1)
of Enhanced Defense Cooperation Agreement (EDCA) would show that
there has been neither an appropriation nor an authorization of
disbursement of funds.—A taxpayer’s suit concerns a case in which the
official act complained of directly involves the illegal disbursement of
public funds derived from taxation. Here, those challenging the act must
specifically show that they have sufficient interest in preventing the illegal
expenditure of public money, and that they will sustain a direct injury as a
result of the enforcement of the assailed act. Applying that principle to this
case, they must establish that EDCA involves the exercise by Congress of
its taxing or spending powers. We agree with the OSG that the petitions
cannot qualify as taxpayers’ suits. We emphasize that a taxpayers’ suit
contemplates a situation in which there is already an appropriation or a
disbursement of public funds. A reading of Article X(1) of EDCA would
show that there has been neither an appropriation nor an authorization of
disbursement of funds.
Same; Same; Legislators’ Suit; In a legislators’ suit, those Members of
Congress who are challenging the official act have standing only to the
extent that the alleged violation impinges on their right to participate in the
exercise of the powers of the institution of which they are members.—We
emphasize that in a legislators’ suit, those Members of Congress who are
challenging the official act have standing only to the extent that the alleged
violation impinges on their right to participate in the exercise of the powers
of the institution of which they are members. Legislators have the standing
“to maintain inviolate the prerogatives, powers, and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of
any official action, which they claim infringes their prerogatives as
legislators.” As legislators, they must clearly show that there was a direct
injury to their persons or the institution to which they belong.

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Constitutional Law; Treaties; Power to Concur in a Treaty; The power

to concur in a treaty or an international agreement is an institutional
prerogative granted by the Constitution to the Senate, not to the entire
Legislature.—As correctly argued by respondent, the power to concur in a
treaty or an international agreement is an institutional prerogative granted
by the Constitution to the Senate, not to the entire Legislature. In Pimentel,
Jr. v. Office of the Executive Secretary, 462 SCRA 622 (2005), this Court did
not recognize the standing of one of the petitioners therein who was a
member of the House of Representatives. The petition in that case sought to
compel the transmission to the Senate for concurrence of the signed text of
the Statute of the International Criminal Court. Since that petition invoked
the power of the Senate to grant or withhold its concurrence in a treaty
entered into by the Executive Department, only then incumbent Senator
Pimentel was allowed to assert that authority of the Senate of which he was
a member.
Same; Judicial Review; When those who challenge the official act are
able to craft an issue of transcendental significance to the people, the
Supreme Court (SC) may exercise its sound discretion and take cognizance
of the suit.—In a number of cases, this Court has indeed taken a liberal
stance towards the requirement of legal standing, especially when
paramount interest is involved. Indeed, when those who challenge the
official act are able to craft an issue of transcendental significance to the
people, the Court may exercise its sound discretion and take cognizance of
the suit. It may do so in spite of the inability of the petitioners to show that
they have been personally injured by the operation of a law or any other
government act.
Executive Power; The duty to faithfully execute the laws of the land is
inherent in executive power and is intimately related to the other executive
functions.—The duty to faithfully execute the laws of the land is inherent in
executive power and is intimately related to the other executive functions.
These functions include the faithful execution of the law in autonomous
regions; the right to prosecute crimes; the implementation of transportation
projects; the duty to ensure compliance with treaties, executive agreements
and executive orders; the authority to deport undesirable aliens; the
conferment of national awards under the President’s jurisdiction; and the
overall administration and control of the executive department.

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Same; Presidency; Foreign Military Bases; 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.—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.
Same; Same; Same; 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.—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.
Verba Legis; 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.—Under the principles of
constitutional construction, of paramount consideration is the plain meaning
of the language expressed in the Constitu-

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tion, or the verba legis rule. It is presumed that the provisions have
been carefully crafted in order to express the objective it seeks to attain. 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.
Foreign Military Bases; 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.—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.
Presidency; The President has the inherent power to enter into
agreements with other states, including the prerogative to conclude binding
executive agreements that do not require further Senate concurrence.—As
the sole organ of our foreign relations and the constitutionally assigned chief
architect of our foreign policy, 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. 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 power is so well-entrenched that Section 5(2)(a), Article VIII of
the Constitution, even provides for a check on its exercise. As expressed

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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.
Executive Agreements; Words and Phrases; In Commissioner of
Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), 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.”—In
Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961),
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.” In Bayan Muna v. Romulo, 641 SCRA 244 (2011), this Court
further clarified that executive agreements can cover a wide array of
subjects that have various scopes and purposes. They are no longer limited
to the traditional subjects that are usually covered by executive agreements
as identified in Eastern Sea Trading.
Same; International Agreements; After noted constitutionalist Fr.
Joaquin Bernas quoted the Supreme Court’s (SC’s) ruling in Commissioner
of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), 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.—One of the
distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence. 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. x x x x [T]he right of the Executive to enter into
binding agreements without the necessity of subsequent Congressional
approval has been con-

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firmed 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.
Same; Same; 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 modern, simplified forms that no longer
necessitate ratification.—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 modern, simplified forms that no longer necessitate ratification. 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.
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.
Same; Section 9 of Executive Order (EO) No. 459, or the Guidelines in
the Negotiation of International Agreements and its Ratification, thus,
correctly reflected the inherent powers of the President

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when it stated that the Department of Foreign Affairs (DFA) “shall

determine whether an agreement is an executive agreement or a treaty.”—
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. The rationale behind this
power and discretion was recognized by the Court in Vinuya v. Romulo, 619
SCRA 533 (2010), cited earlier. 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.
Foreign Military Bases; Enhanced Defense Cooperation Agreement;
Visiting Forces Agreement; The admission and presence of United States
(U.S.) military and civilian personnel in Philippine territory are already
allowed under the Visiting Forces Agreement (VFA), the treaty supposedly
being implemented by Enhanced Defense Cooperation Agreement (EDCA).
What EDCA has effectively done, in fact, is merely provide the mechanism
to identify the locations in which U.S. personnel may perform allowed
activities pursuant to the VFA.—The admission and presence of U.S.
military and civilian personnel in Philippine territory are already
allowed under the VFA, the treaty supposedly being implemented by
EDCA. What EDCA has effectively done, in fact, is merely provide the
mechanism to identify the locations in which U.S. personnel may perform
allowed activities pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the country.
Same; Same; Nowhere in Enhanced Defense Cooperation Agreement
(EDCA) are United States (U.S.) contractors guaranteed immediate
admission into the Philippines; It is neither mandatory

252

nor obligatory on the part of the Philippines to admit United States

(U.S.) contractors into the country.—Nowhere in EDCA are U.S.
contractors guaranteed immediate admission into the Philippines. Articles
III and IV, in fact, merely grant them the right of access to, and the authority
to conduct certain activities within the Agreed Locations. Since Article II(3)
of EDCA specifically leaves out U.S. contractors from the coverage of the
VFA, they shall not be granted the same entry accommodations and
privileges as those enjoyed by U.S. military and civilian personnel under the
VFA. Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country. We emphasize that
the admission of aliens into Philippine territory is “a matter of pure
permission and simple tolerance which creates no obligation on the part of
the government to permit them to stay.” Unlike U.S. personnel who are
accorded entry accommodations, U.S. contractors are subject to Philippine
immigration laws. The latter must comply with our visa and passport
regulations and prove that they are not subject to exclusion under any
provision of Philippine immigration laws. The President may also deny
them entry pursuant to his absolute and unqualified power to prohibit or
prevent the admission of aliens whose presence in the country would be
inimical to public interest.
Same; Same; Visiting Forces Agreement; Presidency; The President
may exercise the plenary power to expel or deport U.S. contractors as may
be necessitated by national security, public safety, public health, public
morals, and national interest; In contrast, Article 111(5) of the Visiting
Forces Agreement (VFA) requires a request for removal from the Philippine
government before a member of the U.S. personnel may be “dispos[ed] x x x
outside of the Philippines.”—In the same vein, the President may exercise
the plenary power to expel or deport U.S. contractors as may be necessitated
by national security, public safety, public health, public morals, and national
interest. They may also be deported if they are found to be illegal or
undesirable aliens pursuant to the Philippine Immigration Act and the Data
Privacy Act. In contrast, Article 111(5) of the VFA requires a request for
removal from the Philippine government before a member of the U.S.
personnel may be “dispos[ed] x x x outside of the Philippines.”
Same; Same; Same; Certain privileges denied to aliens are likewise
denied to foreign military contractors.—EDCA requires that all activities
within Philippine territory be in accordance with Phil-

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ippine law. This means that certain privileges denied to aliens are
likewise denied to foreign military contractors. Relevantly, providing
security and carrying, owning, and possessing firearms are illegal for
foreign civilians. The laws in place already address issues regarding the
regulation of contractors. In the 2015 Foreign Investment Negative list, the
Executive Department has already identified corporations that have equity
restrictions in Philippine jurisdiction. Of note is No. 5 on the list — private
security agencies that cannot have any foreign equity by virtue of Section 4
of Republic Act No. 5487; and No. 15, which regulates contracts for the
construction of defense-related structures based on Commonwealth Act No.
541.
Same; Same; Same; United States (U.S.) contractors are explicitly
excluded from the coverage of the Visiting Forces Agreement (VFA). As
visiting aliens, their entry, presence, and activities are subject to all laws
and treaties applicable within the Philippine territory.—We emphasize that
U.S. contractors are explicitly excluded from the coverage of the VFA. As
visiting aliens, their entry, presence, and activities are subject to all laws and
treaties applicable within the Philippine territory. They may be refused entry
or expelled from the country if they engage in illegal or undesirable
activities. There is nothing that prevents them from being detained in the
country or being subject to the jurisdiction of our courts. Our penal laws,
labor laws, and immigrations laws apply to them and therefore limit their
activities here. Until and unless there is another law or treaty that
specifically deals with their entry and activities, their presence in the
country is subject to unqualified Philippine jurisdiction.
Same; Same; Agreed Locations; The latest agreement is Enhanced
Defense Cooperation Agreement (EDCA), which proposes a novel concept
termed “Agreed Locations.”—The latest agreement is EDCA, which
proposes a novel concept termed “Agreed Locations.” By definition, Agreed
Locations are facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces, United States
contractors, and others as mutually agreed, shall have the right to access and
use pursuant to this Agreement. Such Agreed Locations may be listed in an
annex to be appended to this Agreement, and may be further described in
implementing arrangements. Preliminarily, respondent already claims that
the proviso that the Philippines shall retain ownership of

254

and title to the Agreed Locations means that EDCA is “consistent with
Article II of the VFA which recognizes Philippine sovereignty and
jurisdiction over locations within Philippine territory.”
Same; Same; Same; Enhanced Defense Cooperation Agreement
(EDCA) explicitly provides that ownership of the Agreed Locations remains
with the Philippine government. What United States (U.S.) personnel have a
right to, pending mutual agreement, is access to and use of these locations.
—Once ownership is established, then the rights of ownership flow freely.
Article 428 of the Civil Code provides that “[t]he owner has the right to
enjoy and dispose of a thing, without other limitations than those established
by law.” Moreover, the owner “has also a right of action against the holder
and possessor of the thing in order to recover it.” Philippine civil law
therefore accords very strong rights to the owner of property, even against
those who hold the property. Possession, after all, merely raises a disputable
presumption of ownership, which can be contested through normal judicial
processes. In this case, EDCA explicitly provides that ownership of the
Agreed Locations remains with the Philippine government. What U.S.
personnel have a right to, pending mutual agreement, is access to and use of
these locations.
Same; Same; Same; So long as the right of ownership itself is not
transferred, then whatever rights are transmitted by agreement does not
completely divest the owner of the rights over the property, but may only
limit them in accordance with law.—The right of the owner of the property
to allow access and use is consistent with the Civil Code, since the owner
may dispose of the property in whatever way deemed fit, subject to the
limits of the law. So long as the right of ownership itself is not transferred,
then whatever rights are transmitted by agreement does not completely
divest the owner of the rights over the property, but may only limit them in
accordance with law. Hence, even control over the property is something
that an owner may transmit freely. This act does not translate into the full
transfer of ownership, but only of certain rights. In Roman Catholic
Apostolic Administrator of Davao, Inc. v. Land Registration Commission,
102 Phil. 596 (1957), we stated that the constitutional proscription on
property ownership is not violated despite the foreign national’s control over
the property.

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Same; Same; Same; For actual operations, Enhanced Defense

Cooperation Agreement (EDCA) is clear that any activity must be planned
and preapproved by the Mutual Defense Board-Security Engagement Board
(MDB-SEB).—The legal concept of operational control involves authority
over personnel in a commander-subordinate relationship and does not
include control over the Agreed Locations in this particular case. Though
not necessarily stated in EDCA provisions, this interpretation is readily
implied by the reference to the taking of “appropriate measures to protect
United States forces and United States contractors.” It is but logical, even
necessary, for the U.S. to have operational control over its own forces, in
much the same way that the Philippines exercises operational control over
its own units. For actual operations, EDCA is clear that any activity must be
planned and preapproved by the MDB-SEB. This provision evinces the
partnership aspect of EDCA, such that both stakeholders have a say on how
its provisions should be put into effect.
Same; Same; Same; The Philippines retains primary responsibility for
security with respect to the Agreed Locations.—From the text of EDCA
itself, Agreed Locations are territories of the Philippines that the U.S. forces
are allowed to access and use. By withholding ownership of these areas and
retaining unrestricted access to them, the government asserts sovereignty
over its territory. That sovereignty exists so long as the Filipino people exist.
Significantly, the Philippines retains primary responsibility for security with
respect to the Agreed Locations. Hence, Philippine law remains in force
therein, and it cannot be said that jurisdiction has been transferred to the
U.S. Even the previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with Philippine
authorities. Jurisprudence bears out the fact that even under the former legal
regime of the MBA, Philippine laws continue to be in force within the
bases. The difference between then and now is that EDCA retains the
primary jurisdiction of the Philippines over the security of the Agreed
Locations, an important provision that gives it actual control over those
locations. Previously, it was the provost marshal of the U.S. who kept the
peace and enforced Philippine law in the bases. In this instance, Philippine
forces act as peace officers, in stark contrast to the 1947 MBA provisions on
jurisdiction.

256

Same; Same; Same; Even if the lawfulness of the attack were not in
question, international humanitarian law standards prevent participants in
an armed conflict from targeting nonparticipants.—Even if the lawfulness
of the attack were not in question, international humanitarian law standards
prevent participants in an armed conflict from targeting nonparticipants.
International humanitarian law, which is the branch of international law
applicable to armed conflict, expressly limits allowable military conduct
exhibited by forces of a participant in an armed conflict. Under this legal
regime, participants to an armed conflict are held to specific standards of
conduct that require them to distinguish between combatants and non-
combatants, as embodied by the Geneva Conventions and their Additional
Protocols.
Same; Same; Same; There is ample legal protection for the Philippines
under international law that would ensure its territorial integrity and
national security in the event an Agreed Location is subjected to attack.—
Any armed attack by forces of a third state against an Agreed Location can
only be legitimate under international humanitarian law if it is against a
bona fide U.S. military base, facility, or installation that directly contributes
to the military effort of the U.S. Moreover, the third state’s forces must take
all measures to ensure that they have complied with the principle of
distinction (between combatants and non-combatants). There is, then, ample
legal protection for the Philippines under international law that would
ensure its territorial integrity and national security in the event an Agreed
Location is subjected to attack. As EDCA stands, it does not create the
situation so feared by petitioners — one in which the Philippines, while not
participating in an armed conflict, would be legitimately targeted by an
enemy of the U.S.
Same; Same; Visiting Forces Agreement; The Visiting Forces
Agreement (VFA) already authorizes the presence of United States (U.S.)
military equipment in the country.—The provisions in EDCA dealing with
Agreed Locations are analogous to those in the aforementioned executive
agreements. Instead of authorizing the building of temporary structures as
previous agreements have done, EDCA authorizes the U.S. to build
permanent structures or alter or improve existing ones for, and to be owned
by, the Philippines. EDCA is clear that the Philippines retains ownership of
altered or improved facilities and newly constructed permanent or non-
relocatable struc-

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tures. Under EDCA, U.S. forces will also be allowed to use facilities
and areas for “training; x x x; support and related activities; x x x;
temporary accommodation of personnel; communications” and agreed
activities. Concerns on national security problems that arise from foreign
military equipment being present in the Philippines must likewise be
contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the
VFA already authorizes the U.S. to import into or acquire in the Philippines
“equipment, materials, supplies, and other property” that will be used “in
connection with activities” contemplated therein. The same section also
recognizes that “[t]itle to such property shall remain” with the US and that
they have the discretion to “remove such property from the Philippines at
any time.”
CARPIO, J., Separate Concurring Opinion:
Constitutional Law; Treaties; View that a ratified treaty cannot be
interpreted to require a second ratified treaty to implement the first ratified
treaty, as a fundamental rule is that a treaty must be interpreted to avoid a
“result which is manifestly absurd or unreasonable.”—A ratified treaty like
the MDT must be interpreted to allow the Executive to take all necessary
measures to insure that the treaty’s purpose is attained. A ratified treaty
cannot be interpreted to require a second ratified treaty to implement the
first ratified treaty, as a fundamental rule is that a treaty must be interpreted
to avoid a “result which is manifestly absurd or unreasonable.” This is
particularly true to a mutual defense treaty the purpose of which is mutual
self-defense against sudden armed attack by a third state.
View that the Philippines agreed with the United States (U.S.) to use the
Mutual Defense Treaty (MDT) to preposition U.S. war materials in strategic
locations in the Philippines, particularly in the islands of Palawan and
Luzon facing the West Philippine Sea.—In 2012, China seized Scarborough
Shoal from the Philippines, which could offer no armed resistance to
Chinese naval forces. The Scarborough Shoal seizure finally made the
Philippine Government realize that there was an absolute need to deter
China’s creeping invasion of Philippine islands, rocks and reefs in the West
Philippine Sea. Thus, the Philippines rushed the modernization of its navy
and

258

air force. The Philippines also agreed with the U.S. to use the MDT to
preposition U.S. war materials in strategic locations in the Philippines,
particularly in the islands of Palawan and Luzon facing the West Philippine
Sea.
Same; Same; View that this is what the Enhanced Defense Cooperation
Agreement (EDCA) is all about — the prepositioning in strategic locations
of war materials to successfully resist any armed aggression.—In modern
warfare, the successful implementation of a mutual defense treaty requires
the strategic prepositioning of war materials. Before the advent of guided
missiles and drones, wars could take months or even years to prosecute.
There was plenty of time to conscript and train soldiers, manufacture guns
and artillery, and ship war materials to strategic locations even after the war
had started. Today, wars could be won or lost in the first few weeks or even
first few days after the initial outbreak of war. In modern warfare, the
prepositioning of war materials, like mobile anti-ship and anti-aircraft
missiles, is absolutely necessary and essential to a successful defense
against armed aggression, particularly for a coastal state like the Philippines.
This is what the EDCA is all about — the prepositioning in strategic
locations of war materials to successfully resist any armed aggression. Such
prepositioning will also publicly telegraph to the enemy that any armed
aggression would be repelled. The enemy must know that we possess the
capability, that is, the war materials, to defend the country against armed
aggression. Otherwise, without such capability, we telegraph to the enemy
that further seizure of Philippine islands, rocks and reefs in the South China
Sea would be a walk in the park, just like China’s seizure of Mischief Reef
and Scarborough Shoal. Without such capability, we would practically be
inviting the enemy to seize whatever Philippine island, rock or reef it desires
to seize in the West Philippine Sea.
Same; Same; View that the Philippines will lose 381,000 square
kilometers of its Exclusive Economic Zone (EEZ) in the West Philippine Sea,
a maritime space larger than the total Philippine land area of 300,000
square kilometers.—It is obvious that China will use the three air and naval
bases in its artificial islands to prevent Philippine ships and planes from re-
supplying Philippine-occupied islands in the Spratlys, forcing the
Philippines to abandon its occupied islands. Already, Chinese coast guard
vessels are preventing medium-sized Philippine ships from re-supplying the
BRP Sierra Madre, the

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dilapidated Philippine landing ship beached in Ayungin Shoal, just 20
NM from Mischief Reef. Only the Philippines’ use of small watercrafts
enables the resupply to the BRP Sierra Madre, which is manned by about a
dozen Philippine marine soldiers. The Philippines’ small watercrafts can
navigate the shallow waters of Ayungin Shoal while China’s large coast
guard vessels cannot. With the anticipated installation by China of military
facilities and war materials in its three air and naval bases in the Spratlys,
expected to be completed before the end of 2016, China will begin to
aggressively enforce its 9-dashed lines claim over the South China Sea.
Under this claim, China asserts sovereignty not only to all the islands, rocks
and reefs in the Spratlys, but also to 85.7% of the South China Sea,
comprising all the waters, fisheries, mineral resources, seabed and
submarine areas enclosed by the 9-dashed lines. Under this claim, the
Philippines will lose 381,000 square kilometers of its EEZ in the West
Philippine Sea, a maritime space larger than the total Philippine land area of
300,000 square kilometers. China’s 9-dashed lines claim encroaches on all
the traditional fishing grounds of Filipino fishermen in the South China Sea:
Scarborough Shoal, Macclesfield Bank and the Spratlys.
Same; Same; View that unless the United States (U.S.) and the
Philippines have prepositioned anti-ship missiles in Palawan, there will be
no deterrence to China, and no swift response from U.S. and Philippine
forces.—If China’s navy ships attack a Philippine military ship re-supplying
Philippine-occupied islands in the Spratlys, that will be covered by the
MDT. However, unless the U.S. and the Philippines have prepositioned anti-
ship missiles in Palawan, there will be no deterrence to China, and no swift
response from U.S. and Philippine forces. The absence of any deterrence
will likely invite Chinese harassment, or even armed attack, on Philippine
resupply ships. That will lead to the loss of all Philippine-occupied islands
in the Spratlys, as well as the loss of the gas-rich Reed Bank.
Constitutional Law; National Territory; View that the Philippine
“national territory” refers to areas over which the Philippines has
“sovereignty or jurisdiction.”—The 1987 Constitution defines the “national
territory” to include not only islands or rocks above water at high tide but
also the seabed, subsoil and other submarine areas “over which the
Philippines has sovereignty or jurisdiction.” Article 1 of the 1987
Constitution provides: The national territory com-

260

prises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Emphasis
supplied) Thus, the Philippine “national territory” refers to areas over which
the Philippines has “sovereignty or jurisdiction.” The Constitution
mandates: “The State shall protect the nation’s marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.”
Same; Same; International Law; View that under international law and
in particular under the United Nations Convention on the Law of the Sea
(UNCLOS), the Philippines has jurisdiction over its Exclusive Economic
Zone (EEZ) and Extended Continental Shelf (ECS).—Under international
law and in particular under the UNCLOS, the Philippines has jurisdiction
over its EEZ and ECS. Thus, under domestic law, the Philippines’ EEZ and
ECS form part of Philippine “national territory” since the Constitution
defines “national territory” to include areas over which the Philippines has
“jurisdiction,” a term which means less than sovereignty. However, under
international law, the Philippine “national territory” refers to the areas over
which the Philippines has sovereignty, referring to the Philippines’ land
territory, archipelagic waters and territorial sea, excluding areas over which
the Philippines exercises only jurisdiction like its EEZ and ECS. China has
already invaded repeatedly Philippine “national territory” in two separate
areas, one in the Kalayaan Island Group in the Spratlys and the other in
Scarborough Shoal. When China seized in 1988 Subi Reef, a submerged
area within the Philippines’ ECS and beyond the territorial sea of any high
tide feature, China invaded Philippine national territory as defined in the
Constitution. When China seized in 1995 Mischief Reef, a submerged area
within the Philippines’ EEZ and beyond the territorial sea of any high tide
feature, China invaded Philippine national territory as defined in the
Constitution. When China seized in 2012 Scarborough Shoal, a rock above
water at high tide and constituting land territory under international law,
China invaded Philippine national territory as defined in the Constitution
and as

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understood in international law. Republic Act No. 9522, amending the

Philippine Baselines Law, expressly declares that Scarborough Shoal is part
of Philippine territory over which the Philippines exercises “sovereignty
and jurisdiction.”
Same; Same; Enhanced Defense Cooperation Agreement; View that the
Enhanced Defense Cooperation Agreement (EDCA) was born, to give much
needed teeth to the Mutual Defense Treaty (MDT) as a deterrent to further
Chinese aggression in the West Philippine Sea. Without the EDCA, the MDT
remains a toothless paper tiger.—After China’s seizure of Scarborough
Shoal in 2012, the Philippines finally woke up and summoned the political
will to address the serial and creeping Chinese invasion of Philippine
national territory. Thus, the EDCA was born, to give much needed teeth to
the MDT as a deterrent to further Chinese aggression in the West Philippine
Sea. Without the EDCA, the MDT remains a toothless paper tiger. With the
EDCA, the MDT acquires a real and ready firepower to deter any armed
aggression against Philippine public vessels or aircrafts operating in the
West Philippine Sea. With the EDCA, China will think twice before
attacking Philippine military resupply ships to Philippine-occupied islands
in the Spratlys. With the EDCA, the Philippines will have a fighting chance
to hold on to Philippine-occupied islands in the Spratlys. With the EDCA,
China will think twice before attacking Philippine navy and coast guard
vessels patrolling the West Philippine Sea. This will give the Philippines a
fighting chance to ward off China’s impending enforcement of its 9-dashed
lines as China’s “national boundaries” as shown in its 2013 official vertical
map.
Same; Same; Same; View that to hold that the Enhanced Defense
Cooperation Agreement (EDCA) cannot take effect without Senate
ratification is to render the Mutual Defense Treaty (MDT), our sole mutual
self-defense treaty, totally inutile to meet the grave, even existentialist,
national security threat that the Philippines is now facing in the West
Philippine Sea.—The EDCA is absolutely necessary and essential to
implement the purpose of the MDT, which on the part of the Philippines,
given the existing situation in the West Philippine Sea, is to deter or repel
any armed attack on Philippine territory or on any Philippine public vessel
or aircraft operating in the West Philippine Sea. To hold that the EDCA
cannot take effect without Senate ratification is to render the MDT, our sole
mutual

262


self-defense treaty, totally inutile to meet the grave, even existentialist,
national security threat that the Philippines is now facing in the West
Philippine Sea. China has already invaded several geologic features
comprising part of Philippine “national territory” as defined in the
Constitution. The territorial integrity of the Philippines has been violated
openly and repeatedly. The President, as Commander-in-Chief of the Armed
Forces, “chief architect” of foreign policy and implementer of the MDT, has
decided on the urgent need to fortify Philippine military defenses by
prepositioning war materials of our treaty ally on Philippine soil. This Court
should not erect roadblocks to the President’s implementation of the MDT,
particularly since time is of the essence and the President’s act of entering
into the EDCA on his own does not violate any provision of the
Constitution.

LEONARDO-DE CASTRO, J., Concurring and Dissenting Opinion:

Constitutional Law; Foreign Military Bases; View that Section 25,
Article XVIII embodies a prohibition: “foreign military bases, troops, or
facilities shall not be allowed in the Philippines,” unless the requisites in
the said section are met.—Section 25, Article XVIII bans foreign military
bases, troops, or facilities in Philippine territory, unless the following
requisites are complied with: (1) the presence of foreign military bases,
troops, or facilities should be allowed by a treaty; (2) the treaty must be
duly concurred in by the Philippine Senate and, when Congress so
requires, such treaty should be ratified by a majority of the votes cast by the
Filipino people in a national referendum held for that purpose; and (3) such
treaty should be recognized as a treaty by the other contracting party.
Couched in negative terms, Section 25, Article XVIII embodies a
prohibition: “foreign military bases, troops, or facilities shall not be allowed
in the Philippines,” unless the requisites in the said section are met.
Foreign Military Bases; Visiting Forces Agreement; View that the
Visiting Forces Agreement (VFA) expressly allowed the importation into the
Philippines of reasonable quantities of personal baggage, personal effects,
and other property for the personal use of United States (U.S.) personnel.—
The VFA expressly allowed the importation into the Philippines of
reasonable quantities of personal baggage, personal effects, and other
property for the personal use of United

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States personnel. The VFA likewise expressly allowed the entry into
the Philippines of (1) aircraft operated by or for the United States armed
forces upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements; and (2) vessels
operated by or for the United States armed forces upon approval of the
Government of the Philippines, in accordance with international custom and
practice and such agreed implementing arrangements as necessary. The VFA
also provided for the jurisdiction over criminal and disciplinary cases over
United States personnel with respect to offences committed within the
Philippines. The VFA further stated that the same 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.
Same; Enhanced Defense Cooperation Agreement; View that under the
Enhanced Defense Cooperation Agreement (EDCA), the Philippines by
mutual agreement with the United States (U.S.), shall provide the U.S.
forces the access and use of portions of Philippine territory; These portions
of Philippine territory that will be made available to the U.S. are called
“Agreed Locations,” which is a new concept defined under Article II(4) of
the EDCA.—Under the EDCA, the Philippines by mutual agreement with
the United States, shall provide the United States forces the access and use
of portions of Philippine territory. United States forces are “the entity
comprising United States personnel and all property, equipment, and
materiel of the United States Armed Forces present in the territory of the
Philippines.” These portions of Philippine territory that will be made
available to the US are called “Agreed Locations,” which is a new concept
defined under Article II(4) of the EDCA as: 4. “Agreed Locations” means
facilities and areas that are provided by the Government of the Philippines
through the AFP and that the United States forces, United States contractors,
and others as mutually agreed, shall have the right to access and use
pursuant to this Agreement. Such Agreed Locations may be listed in an
annex to be appended to this Agreement, and may further be described in
implementing arrangements.
Same; Same; View that aside from the right to access and to use the
Agreed Locations, the United States (U.S.) may undertake the following
types of activities within the Agreed Locations: security

264

cooperation exercises; joint and combined training activities;

humanitarian and disaster relief activities; and such other activities that as
may be agreed upon by the Parties.—Aside from the right to access and to
use the Agreed Locations, the United States may undertake the following
types of activities within the Agreed Locations: security cooperation
exercises; joint and combined training activities; humanitarian and disaster
relief activities; and such other activities that as may be agreed upon by the
Parties.” Article III(1) of the EDCA further states in detail the activities that
the United States may conduct inside the Agreed Locations: 1. With
consideration of the views of the Parties, the Philippines hereby authorizes
and agrees· that United States forces, United States contractors, and
vehicles, vessels, and aircrafts operated by or for United States forces may
conduct the following activities with respect to Agreed Locations: training;
transit; support and related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deploying forces
and materiel; and such other activities as the Parties may agree.
Same; Same; View that the United States (U.S.) is also granted
operational control of Agreed Locations to do construction activities, make
alterations or improvements of the Agreed Locations.—The United States is
also granted operational control of Agreed Locations to do construction
activities, make alterations or improvements of the Agreed Locations. All
buildings, non-relocatable structures, and assemblies affixed to the land in
the Agreed Locations, including [those] altered or improved by United
States forces, remain the property of the Philippines. Permanent buildings
constructed by the United States forces become the property of the
Philippines, once constructed, but shall be used by the United States forces
until no longer required.
Same; Same; View that considering the presence of United States
(U.S.) armed forces: military personnel, vehicles, vessels, and aircrafts and
other defensive equipment, supplies, and materiel in the Philippines, for
obvious military purposes and with the obvious intention of assigning or
stationing them within the Agreed Locations, said Agreed Locations, for all
intents and purposes, are considered military bases and fall squarely under
the definition of a military

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base under Section 2, Presidential Decree (PD) No. 1227, otherwise
known as “Punishing Unlawful Entry into Any Military Base in the
Philippines.”—The United States is authorized to preposition and store
defense equipment, supplies, and materiel (“prepositioned materiel”),
including but not limited to, humanitarian assistance and disaster relief
equipment, supplies and material, at Agreed Locations. The prepositioned
materiel of the United States forces shall be for the exclusive use of United
States forces, and full title to all such equipment, supplies and materiel
remains with the United States. United States forces and United States
contractors shall have unimpeded access to Agreed Locations for all matters
relating to the prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection, use, maintenance,
and removal of such equipment, supplies and materiel. The United States
forces and United States contractors shall retain title to all equipment,
materiel, supplies, relocatable structures, and other movable property that
have been imported into or acquired within the territory of the Philippines
by or on behalf of United States forces. Considering the presence of US
armed forces: military personnel, vehicles, vessels, and aircrafts and other
defensive equipment, supplies, and materiel in the Philippines, for obvious
military purposes and with the obvious intention of assigning or stationing
them within the Agreed Locations, said Agreed Locations, for all intents and
purposes, are considered military bases and fall squarely under the definition
of a military base under Section 2, Presidential Decree No. 1227, otherwise
known as “Punishing Unlawful Entry into Any Military Base in the
Philippines,” which states: SECTION 2. The term “military base” as used in
this decree means any military, air, naval, or coast guard reservation,
base, fort, camp, arsenal, yard, station, or installation in the
Philippines.
Same; Same; View that the Enhanced Defense Cooperation Agreement
(EDCA) provided for an initial term of ten (10) years, which thereafter shall
continue in force automatically, unless terminated by either party by giving
one year’s written notice through diplomatic channels of its intention to
terminate the agreement.—The EDCA provided for an initial term of ten
years, which thereafter shall continue in force automatically, unless
terminated by either party by giving one year’s written notice through
diplomatic channels of its intention to terminate the agreement.

266

Same; Same; International Agreements; View that the Enhanced

Defense Cooperation Agreement (EDCA) is an international agreement that
allows the presence in the Philippines of foreign military bases, troops and
facilities, and thus requires that the three requisites under Section 25,
Article XVIII be complied with. The EDCA must be submitted to the Senate
for concurrence.—These EDCA provisions establishes military areas
similar to that in the Military Bases Agreement, and for that reason
alone, the EDCA is far greater in scope than both the Mutual Defense Treaty
and the Visiting Forces Agreement. The EDCA is not a mere implementing
agreement of either the MDT or the VFA. The EDCA is an international
agreement that allows the presence in the Philippines of foreign military
bases, troops and facilities, and thus requires that the three requisites under
Section 25, Article XVIII be complied with. The EDCA must be submitted
to the Senate for concurrence.
Same; Same; Same; View that international agreements may be in the
form of: (1) treaties, which require legislative concurrence after executive
ratification; or (2) executive agreements, which are similar to treaties,
except that they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than treaties.—
Generally, the parties to an international agreement are given the freedom to
choose the form of their agreement. International agreements may be in the
form of: (1) treaties, which require legislative concurrence after executive
ratification; or (2) executive agreements, which are similar to treaties,
except that they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than treaties.
Under Article 2 of the Vienna Convention on the Law of Treaties, a treaty is
defined as an international agreement concluded between states in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.
Same; Same; View that contrary to the posturing of the majority, the
presence of foreign military bases, troops, or facilities provided under the
Enhanced Defense Cooperation Agreement (EDCA) cannot be traced to the
Mutual Defense Treaty (MDT).—The very clear-cut focal point of the
EDCA is the authority granted to the United States forces and contractors to
have unimpeded access to so-

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called Agreed Locations — which can be anywhere in the Philippines

— and to build there military facilities and use the same to undertake
various military activities. The very wording of the EDCA shows that it
undoubtedly deals with the presence of foreign military bases, troops, and
facilities in Philippine territory. Thus, contrary to the posturing of the
majority, the presence of foreign military bases, troops, or facilities provided
under the EDCA cannot be traced to the MDT. Moreover, the general
provisions of the MDT cannot prevail over the categorical and specific
provision of Section 25, Article XVIII of the Constitution.
Same; Same; Agreed Locations; View that under the Enhanced Defense
Cooperation Agreement (EDCA), United States (U.S.) forces and U.S.
contractors are permitted to stay in the Agreed Locations to undertake
military activities therein without any clear limitation as to the duration of
their stay.—Initially, what is abundantly clear with the foregoing
enumeration is that the EDCA is an entirely new creation. The provisions of
the EDCA are not found in or have no corresponding provisions in the VFA.
They cover entirely different subject matters and they create new and
distinct rights and obligations on the part of the Philippines and the United
States. Furthermore, as to the nature of the presence of foreign military
troops in this country, the VFA is explicit in its characterization that it is an
agreement between the governments of the Philippines and the United
States regarding the treatment of United States Armed Forces visiting the
Philippines. The Preamble of the VFA likewise expressly provides that,
“noting that from time to time elements of the United States armed forces
may visit the Republic of the Philippines” and “recognizing the desirability
of defining the treatment of United States personnel visiting the Republic of
the Philippines” the parties to the VFA agreed to enter into the said treaty.
The use of the word visit is very telling. In its ordinary usage, to visit is to
“stay temporarily with (someone) or at (a place) as a guest or tourist” or to
“go to see (someone or something) for a specific purpose.” Thus, the word
visit implies the temporariness or impermanence of the presence at a
specific location. On the other hand, under the EDCA, United States forces
and United States contractors are permitted to stay in the Agreed Locations
to undertake military activities therein without any clear limitation as to
the duration of their stay. Moreover, they are given unimpeded access to
Agreed Locations to

268


conduct different activities that definitely were not contemplated under
the VFA.
Same; Same; View that in the instant case, some of the activities that
the United States (U.S.) forces will undertake within the Agreed Locations
such as prepositioning of defense equipment, supplies and materiel, and
deploying of forces and materiel are actual military measures supposedly
put into place in anticipation of battle.—In the instant case, some of the
activities that the United States forces will undertake within the Agreed
Locations such as prepositioning of defense equipment, supplies and
materiel, and deploying of forces and materiel are actual military measures
supposedly put into place in anticipation of battle. To preposition means “to
place military units, equipment, or supplies at or near the point of planned
use or at a designated location to reduce reaction time, and to ensure timely
support of a specific force during initial phases of an operation.” On the
other hand, materiel is defined as “all items necessary to equip, operate,
maintain, and support military activities without distinction as to its
application for administrative or combat purposes.” Also, to deploy means
“to place or arrange (armed forces) in battle disposition or formation or in
locations appropriate for their future employment.” Deployment also means
“the rotation of forces into and out of an operational area.”
Same; Same; View that this grant of authority to construct new
buildings and the improvement of existing buildings inside the Agreed
Locations — which buildings are to be used indefinitely — further evinces
the permanent nature of the stay of United States (U.S.) forces and
contractors in this country under the Enhanced Defense Cooperation
Agreement (EDCA).—The EDCA likewise allows the construction of
permanent buildings, which the United States forces can utilize until such
time that they no longer need the use thereof. The construction of permanent
buildings, including the alteration or improvement by the United States of
existing buildings, structures and assemblies affixed to the land, are
certainly necessary not only for the accommodation of its troops, bunkering
of vessels, maintenance of its vehicles, but also the creation of the proper
facilities for the storage and prepositioning of its defense materiel. This
grant of authority to construct new buildings and the improvement of
existing buildings inside the Agreed Locations — which buildings are to be
used indefinitely — further evinces the perma-

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nent nature of the stay of United States forces and contractors in this
country under the EDCA. This is a far cry from the temporary visits of
United States armed forces contemplated in the VFA.
Same; Same; View that the intervention of the Senate through the
constitutionally ordained treaty-making process in defining the new national
policy concerning United States (U.S.) access to Agreed Locations
enunciated in the Enhanced Defense Cooperation Agreement (EDCA),
which has never been before expressly or impliedly authorized, is imperative
and indispensible for the validity and effectivity of the EDCA.—Article II(4)
of the EDCA states that the Agreed Locations shall be provided by the
Philippine Government through the AFP. What is readily apparent from
said article is that the AFP is given a broad discretion to enter into
agreements with the United States with respect to the Agreed Locations.
The grant of such discretion to the AFP is without any guideline, limitation,
or standard as to the size, area, location, boundaries and even the number of
Agreed Locations to be provided to the United States forces. As there is no
sufficient standard in the EDCA itself, and no means to determine the limits
of authority granted, the AFP can exercise unfettered power that may have
grave implications on national security. The intervention of the Senate
through the constitutionally ordained treaty-making process in defining the
new national policy concerning United States access to Agreed Locations
enunciated in the EDCA, which has never been before expressly or
impliedly authorized, is imperative and indispensible for the validity and
effectivity of the EDCA.
Same; Same; View that the initial entry of United States (U.S.) troops
under the Visiting Forces Agreement (VFA) cannot, as postulated by the
ponencia, justify a “treaty-authorized” presence under the Enhanced
Defense Cooperation Agreement (EDCA), since the presence contemplated
in the EDCA also pertains to the establishment of foreign military bases or
facilities, and not merely visiting troops.—The VFA, which allows the
presence of the units of the United States military troops, cannot by any
stretch of the imagination include any arrangement that practically allows
the establishment of United States military bases or facilities in the so-called
Agreed Locations under the EDCA. Thus, the EDCA goes far-beyond the
arrangement contemplated by the VFA and therefore it necessarily requires
Senate concurrence as mandated by Section 25, Article XVIII of the

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Constitution. In the same vein, the initial entry of United States troops
under the VFA cannot, as postulated by the ponencia, justify a “treaty-
authorized” presence under the EDCA, since the presence contemplated in
the EDCA also pertains to the establishment of foreign military bases or
facilities, and not merely visiting troops.
Same; Same; View that the argument that the entry of the United States
(U.S.) bases, troops and facilities under the Enhanced Defense Cooperation
Agreement (EDCA) is already allowed in view of the “initial entry” of U.S.
troops under the Visiting Forces Agreement (VFA) glaringly ignores that the
entry of visiting foreign military troops is distinct and separate from the
presence or establishment of foreign military bases or facilities in the
country under Section 25, Article XVIII of the Constitution.—The argument
that the entry of the United States bases, troops and facilities under the
EDCA is already allowed in view of the “initial entry” of United States
troops under the VFA glaringly ignores that the entry of visiting foreign
military troops is distinct and separate from the presence or establishment of
foreign military bases or facilities in the country under Section 25, Article
XVIII of the Constitution. To reiterate, the EDCA is entirely a new treaty,
separate and distinct from the VFA and the MDT. Hence, it must satisfy the
requirements under Section 25, Article XVIII of the Constitution. The
Senate itself issued Resolution No. 105 on November 10, 2015, whereby it
expressed its “definite stand on the non-negotiable power of the Senate to
decide whether a treaty will be valid and effective depending on the Senate
concurrence” and resolved “that the RP-US EDCA [is a] treaty [that]
requires Senate concurrence in order to be valid and effective.”

BRION, J., Dissenting Opinion:

Constitutional Law; Executive Agreements; Enhanced Defense
Cooperation Agreement; View that the Enhanced Defense Cooperation
Agreement (EDCA) is an agreement that, on deeper examination, violates
the letter and spirit of Article XVIII, Section 25 and Article VII, Section 21,
both of the Constitution.—I dissent, as I disagree that an executive
agreement is the proper medium for the matters covered by the EDCA.
The EDCA is an agreement that, on deeper examination, violates the letter
and spirit of Article XVIII, Section 25 and Article VII, Section 21, both of
the Constitution. The EDCA should be in the form of a treaty as it brings
back to

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the Philippines: the modern equivalent of the foreign military

bases whose term expired in 1991 and which Article XVIII, Section 25
of the Constitution directly addresses; foreign troops under
arrangements outside of the contemplation of the visiting forces that the
1998 VFA allows; and military facilities that, under modern military
strategy, likewise can be brought in only through a treaty.
Same; Judicial Review; View that judicial review is part of the exercise
of judicial power under Article VIII, Section 1 of the Constitution,
particularly when it is exercised under the judiciary’s expanded power (i.e.,
when courts pass upon the actions of other agencies of government for the
grave abuse of discretion they committed), or when the Supreme Court (SC)
reviews, on appeal or certiorari, the constitutionality or validity of any law
or other governmental instruments under Section 5(2)(a) and (b) of Article
VIII of the Constitution.—I agree with the ponencia’s ultimate conclusions
on the threshold issues raised. I agree as well that a justiciable issue exists
that the Court can pass upon, although on both counts I differ from the
ponencia’s line of reasoning. Let me point out at the outset, too, that judicial
review is only an exercise of the wider judicial power that Article VIII,
Section 1 of the Constitution grants and defines. One should not be confused
with the other. Judicial review is part of the exercise of judicial power under
Article VIII, Section 1 of the Constitution, particularly when it is exercised
under the judiciary’s expanded power (i.e., when courts pass upon the
actions of other agencies of government for the grave abuse of discretion
they committed), or when the Supreme Court reviews, on appeal or
certiorari, the constitutionality or validity of any law or other governmental
instruments under Section 5(2)(a) and (b) of Article VIII of the Constitution.
A basic requirement is the existence of an actual case or controversy that,
viewed correctly, is a limit on the exercise of judicial power or the more
specific power of judicial review.
Same; Locus Standi; View that the standing of even a plain citizen
sufficiently able to bring and support a suit, should be recognized as he or
she can then be deemed to be acting in representation of the general public.
—Locus standi is a requirement for the exercise of judicial review and is in
fact an aspect of the actual case or controversy requirement viewed from the
prism of the complaining party whose right has been violated. When a
violation of a private right is

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asserted, the locus standi requirement is sharp and narrow because the
claim of violation accrues only to the complainant or the petitioner whose
right is alleged to have been violated. On the other hand, when a violation of
a public right is asserted — i.e., a right that belongs to the public in general
and whose violation ultimately affects every member of the public — the
locus standi requirement cannot be sharp or narrow; it must correspond in
width to the right violated. Thus, the standing of even a plain citizen
sufficiently able to bring and support a suit, should be recognized as he or
she can then be deemed to be acting in representation of the general public.
Same; Same; View that the issues involved in the present case are so
important that a plain citizen sufficiently knowledgeable of the outstanding
issues, should be allowed to sue.—I believe that the issues involved in the
present case are so important that a plain citizen sufficiently knowledgeable
of the outstanding issues, should be allowed to sue. The petitioners — some
of whom are recognized legal luminaries or are noted for their activism on
constitutional matters — should thus be recognized as parties with proper
standing to file and pursue their petitions before this Court.
Same; Foreign Military Bases; View that in the present cases, Article
VIII, Section 25 of the Constitution lays down in no uncertain terms the
conditions under which foreign military bases, troops, and facilities may be
allowed into the country: there should at least be the concurrence of the
Senate.—In the present cases, Article VIII, Section 25 of the Constitution
lays down in no uncertain terms the conditions under which foreign military
bases, troops, and facilities may be allowed into the country: there should at
least be the concurrence of the Senate. Under these terms, the refusal to
allow entry of foreign military bases, troops, and facilities into the country
without the required Senate concurrence is a prerogative that the people of
this country adopted for themselves under their Constitution: they want
participation in this decision, however indirect this participation might be.
This prerogative is exercised through the Senate; thus, a violation of this
constitutional prerogative is not only a transgression against the Senate but
one against the people who the Senate represents. The violation in this case
occurred when the President ratified the EDCA as an executive agreement
and certified to the other contracting party (the U.S.) that all the internal
processes have been complied with, leading the latter to believe that the

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agreement is already valid and enforceable. Upon such violation, the

dispute between the President and the Filipino people ripened.
Same; Same; Enhanced Defense Cooperation Agreement; View that if
indeed a referral to the Senate is required and no referral has been made,
then the Enhanced Defense Cooperation Agreement (EDCA) is
constitutionally deficient so that its terms cannot be enforced.—The main
issue the petitioners pose — the constitutional status of the EDCA as an
executive agreement in light of the mandate of Article XVIII, Section 25 of
the Constitution — is not a political question outside the judiciary’s
competence and authority to resolve. The respondents’ argument on this
point is therefore erroneous. If indeed a referral to the Senate is required and
no referral has been made, then the EDCA is constitutionally deficient so
that its terms cannot be enforced. This finding renders further proceedings
on the merits of the substantive issues raised, pointless and unwarranted.
There is likewise no point in determining whether the substantive issues
raised call for the application of the political question doctrine.
Same; Same; Same; View that the Filipino nation cannot attain self-
respect unless it shows its respect for its own Constitution — the only
instrument that binds the whole nation.—EDCA and Article XVIII, Section
25 of the Constitution, in their larger regional signification, mean that the
Philippines would thereafter, not only be bound as an American ally
under the 1951 MDT, but as an active participant as “pivot” and
projection points in the grand American strategy in Asia. How the
Philippines will react to all these developments is largely for the Executive
and the people (through the Legislature) to determine. In making its
decisions, they must — at the very least — show one and all that our
country is entitled to respect as an independent and sovereign nation. This
respect must come primarily from within the Philippines and the Filipinos
themselves, from the nation’s own sense of self-respect: in negative terms,
the Filipino nation cannot attain self-respect unless it shows its respect for
its own Constitution — the only instrument that binds the whole nation.
Same; Presidency; View that the supremacy of the Constitution means
that in the performance of his duties, the President should always be guided
and kept in check by the safeguards that were crafted by the framers of the
Constitution and ratified by the people.—The supremacy of the Constitution
means that in the performance of his duties, the President should always be
guided and kept in check by the safeguards that were

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crafted by the framers of the Constitution and ratified by the people.
The Constitution prescribes the limitations to the otherwise awesome
powers of the Executive who wields the power of the sword and shares in
the power of the purse. I also do not agree that constitutional limitations,
such as the need for Senate concurrence in treaties, can be disregarded if
they unduly “tie the hands” of the President. These limitations are
democratic safeguards that place the responsibility over national policy
beyond the hands of a single official. Their existence is the hallmark of a
strong and healthy democracy. In treaty-making, this is how the people
participate — through their duly elected Senate — or directly when the
Congress so requires. When the Constitution so dictates, the President must
act through the medium of a treaty and is left with no discretion on the
matter. This is the situation under Article XVIII, Section 25 of the
Constitution, whose application is currently in dispute. Let it be noted that
noble objectives do not authorize the President to bypass constitutional
safeguards and limits to his powers. To emphasize this point, we only need
to refer to Article VI, Section 23(2) of the Constitution: (2) In times of war
or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the
Congress, such power shall cease upon the next adjournment thereof.
[Emphasis supplied] Thus, the President cannot, by himself, usurp the
prerogatives of a coequal branch to carry out what he believes is necessary
for the country’s defense interests. His position as the Commander-in-Chief
of the Armed Forces of the Philippines (AFP) does not give him the sole
discretion to increase our military’s defensive capabilities; his role as
commander-in-chief only gives him control of the military’s chain of
command. It grants him the power to call out the armed forces to
prevent/suppress lawless violence, invasion, insurrection, or rebellion.
Same; Same; View that while the President’s role as the country’s lead
official in the conduct of foreign affairs is beyond question, his authority is
not without limit.—While the President’s role as the country’s lead official
in the conduct of foreign affairs is beyond

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question, his authority is not without limit. When examined within the
larger context of how our tripartite system of government works (where
each branch of government is supreme within its sphere but coordinate with
the others), we can see that the conduct of foreign affairs, particularly when
it comes to international agreements, is a shared function among all three
branches of government. The President is undeniably the chief architect of
foreign policy and is the country’s representative in international affairs. He
is vested with the authority to preside over the nation’s foreign relations
which involve, among others, dealing with foreign states and governments,
extending or withholding recognition, maintaining diplomatic relations, and
entering into treaties. In the realm of treaty-making, the President has the
sole authority to negotiate with other States.
Same; Same; Treaties; View that by requiring the concurrence of the
Legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balances necessary in the nation’s
pursuit of political maturity and growth.—That we have consistently
included the participation of the legislative branch in the treaty-making
process is not without an important reason: it provides a check on the
Executive in the field of foreign relations. By requiring the concurrence of
the Legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balances necessary in the nation’s
pursuit of political maturity and growth. Under this system, the functions of
government are divided among three branches of government, each one
supreme within its own sphere: the executive administers and enforces laws;
the legislature formulates and enacts laws; and the judiciary settles cases
arising out of the enforcement of these laws. The requirement of Senate
concurrence to the executive’s treaty-making powers is a check on the
prerogative of the Executive, in the same manner that the Executive’s veto
on laws passed by Congress is a check on the latter’s legislative powers.
Same; Same; Same; Judicial Review; View that entry into international
agreements is a shared function among the three (3) branches of
government.—The judicial branch of government’s participation in
international agreements is largely passive, and is only triggered when cases
reach the courts. The courts, in the exercise of their judicial power, have the
duty to ensure that the Executive and Legislature stay within their spheres of
competence; they ensure as

276

well that constitutional standards and limitations set by the Constitution

for the Executive and the Congress to follow are not violated. Article VIII,
Section 5 of the Constitution is even more explicit, as it gives the Supreme
Court the jurisdiction “to review by appeal or certiorari all cases in which
the constitutionality or validity of any treaty, international or executive
agreement, law x x x is in question.” Thus, entry into international
agreements is a shared function among the three branches of government. In
this light and in the context that the President’s actions should be viewed
under our tripartite system of government, I cannot agree with the
ponencia’s assertion that the case should be examined solely and strictly
through the constitutional limitation found in Article XVIII, Section 25
of the Constitution.
Same; Treaties; Executive Agreements; View that Bayan Muna v.
Romulo, 641 SCRA 244 (2011), did not distinguish between treaties and
executive agreements in terms of their binding effects on the contracting
States concerned.—Jurisprudential definitions of treaties and executive
agreements are conceptually drawn from these distinctions although in
Bayan Muna v. Romulo, 641 SCRA 244 (2011), we simply differentiated
treaties from executive agreements in this wise: Article 2 of the Vienna
Convention on the Law of Treaties: An international agreement concluded
between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation. International agreements may be in the
form of (1) treaties that require legislative concurrence after executive
ratification; or (2) executive agreements that are similar to treaties,
except that they do not require legislative concurrence and are usually
less formal and deal with a narrower range of subject matters than treaties.
[Emphases supplied] Bayan Muna likewise did not distinguish between
treaties and executive agreements in terms of their binding effects on the
contracting States concerned. But neither one can contravene the
Constitution. This ambiguity perhaps might have been the root of the
general statement that the Executive generally has the discretion to
determine whether an international obligation should be in the form of a
treaty or an executive agreement. This general statement, however, is far
from complete and should be qualified because the Executive’s exercise of
discretion is affected and should be dictated by the demands of the
enforceability of the obligations the international

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agreement creates in the domestic sphere. Between a treaty and an

executive agreement, a treaty exists on a higher plane as it carries the
authority of the President and the Senate. Treaties have the status, effect,
and impact of statutory law in the Philippines; they can amend or prevail
over prior statutory enactments. Executive agreements — which exist at the
level of implementing rules and regulations or administrative orders in the
domestic sphere — carry no such effect. They cannot contravene statutory
enactments and treaties and would be invalid if they do so. Again, this
difference in impact is traceable to the source of their authority; since a
treaty has the approval of both the President and the Senate, it has the same
impact as a statute. In contrast, since an executive agreement springs from
the President’s power to execute laws, it cannot amend or violate existing
treaties, and must be in accord with and be made pursuant to existing laws
and treaties.
Same; Same; Same; International Agreements; View that when an
international agreement is made merely to implement an existing law or
treaty, then it can properly take the form of an executive agreement. In
contrast, when an international agreement involves the introduction of a
new subject matter or the amendment of existing agreements or laws and
has not passed the required executive and legislative processes, then it
should properly be in the form of a treaty.—Accordingly, the terms and
objectives of the presidential entry into an international agreement dictates
the form the agreement must take. When an international agreement is made
merely to implement an existing law or treaty, then it can properly take the
form of an executive agreement. In contrast, when an international
agreement involves the introduction of a new subject matter or the
amendment of existing agreements or laws and has not passed the required
executive and legislative processes, then it should properly be in the form of
a treaty.
Same; Foreign Military Bases; View that the dynamics that Article VII,
Section 21 embody, should be read into Article XVIII, Section 25 of the 1987
Constitution, which specifically covers and applies to the entry of foreign
military bases, troops, or facilities into the country.—The dynamics that
Article VII, Section 21 embody, should be read into Article XVIII, Section
25 of the 1987 Constitution, which specifically covers and applies to the
entry of foreign military bases, troops, or facilities into the country. It is on
the basis of this joint

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reading that the ponencia’s conclusion — that Article XVIII, Section

25 applies only to the initial entry of foreign military bases, troops, and
facilities in the country — is essentially incorrect. Article XVIII, Section 25
does not provide for any such limitation in its applicability. Neither is there
anything in the language of the provision that remotely implies this
consequence. What it simply states is that foreign military bases, troops, and
facilities may only be present in Philippine soil in accordance with a treaty
concurred in by the Senate.
Same; Same; International Agreements; View that any subsequent
international agreement referring to military bases, troops or facilities
should be examined based on whether it creates a new obligation or
implements an existing one.—After the initial entry of foreign military
bases, troops, or facilities in the Philippines under a duly ratified treaty,
subsequent arrangements relating to foreign military bases, troops or
facilities that are claimed to be based on the same treaty, should be
examined based on the treaty-executive agreement distinctions recognized
by jurisprudence under Article VII, Section 21 of the Constitution. In other
words, any subsequent international agreement referring to military bases,
troops or facilities should be examined based on whether it creates a new
obligation or implements an existing one. The determination of this
question rests with the Executive but the treaty-executive agreement
distinctions should limit the Executive’s discretion when the new
international agreement relates to a new obligation (or a change in an
existing obligation) as the presence of foreign military bases, troops, or
facilities in the Philippines should then be effected through another treaty.
Same; Same; Enhanced Defense Cooperation Agreement; View that if
the Enhanced Defense Cooperation Agreement (EDCA) introduces foreign
military bases, troops, or facilities in the Philippines within the
contemplation of Article XVIII, Section 25 of the 1987 Constitution, and if
these obligations are different from those found in our existing treaty
obligations with the United States (U.S.), then the EDCA cannot be enforced
in the Philippines without the Senate’s concurrence.—If the EDCA
introduces foreign military bases, troops, or facilities in the Philippines
within the contemplation of Article XVIII, Section 25 of the 1987
Constitution, and if these obligations are different from those found in our
existing treaty obligations with

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the U.S., then the EDCA cannot be enforced in the Philippines without
the Senate’s concurrence. The ponencia is then incorrect and the Dissent
must prevail. Conversely, if the EDCA merely implements present treaty
obligations — particularly those under the 1951 MDT and the 1998 VFA —
then the President was well within his powers in the execution of our
present treaty obligations. The ponencia is correct and the Dissent
therefore fails.
Same; International Agreements; Treaties; View that when the subject
of an international agreement falls under Article XVIII, Section 25 of the
Constitution, the President — by constitutional command — must enter into
a treaty subject to the concurrence of the Senate and, when Congress so
desires, of the people through a national referendum.—When the subject of
an international agreement falls under Article XVIII, Section 25 of the
Constitution, the President — by constitutional command — must enter into
a treaty subject to the concurrence of the Senate and, when Congress so
desires, of the people through a national referendum. This rule opens the
door for Court intervention pursuant to its duty to uphold the Constitution
and its further duty (under its power of judicial review) to pass upon any
grave abuse of discretion committed by any official or agency of
government. It is under this constitutionally-mandated terms that this Court
invokes its power to review the constitutionality of the President’s actions in
handling the EDCA. Within this framework, the issue these cases present is
clear. The bottom line question is whether the President gravely abused his
discretion in executing the EDCA as an executive agreement; the alleged
existence of grave abuse of discretion constitutes the actual case or
controversy that allows the exercise of judicial power. Whether grave abuse
exists, in turn, depends on the determination of whether the terms of the
EDCA imposed new or amended existing obligations involving foreign
military bases, troops, and facilities in the Philippines.
Same; Foreign Military Bases; View that within its territory, a nation
reigns supreme. If it will allow interference at all, such interference should
be under the terms the nation allows and has accepted; beyond those terms,
the primacy of sovereignty is the rule.—I believe that the ponencia’s
approach and interpretation are incorrect because they are overly
simplistic. The proper understanding of Article XVIII, Section 25 must take
into account the many considera-

280

tions that bear upon its plain terms, among them, the treaty-executive
agreement distinctions under Article VII, Section 21 that I discussed above;
the history of Article XVIII, Section 25; the motivations that drove the
framers to adopt the provision; and the current and contemporaneous
developments and usages that give full and effective meaning to the
provision. Separately from textual interpretation considerations and as part
of the history of Article XVIII, Section 25, the basic concept of sovereignty
that underlies it should not be forgotten. Sovereignty means the full right
and power of the nation to govern itself, its people, and its territory without
any interference from outside sources or entities. Within its territory, a
nation reigns supreme. If it will allow interference at all, such interference
should be under the terms the nation allows and has accepted; beyond those
terms, the primacy of sovereignty is the rule.
Same; Treaties; View that Article XVIII, Section 25 imposed three (3)
requirements that must be complied with for an agreement to be considered
valid insofar as the Philippines is concerned. These three requirements are:
(1) the agreement must be embodied in a treaty; (2) the treaty must be duly
concurred in by 2/3 votes of all the members of the Senate; recognized as a
treaty by the other State; and (3) the agreement must be recognized as a
treaty by the other State.—Article XVIII, Section 25 imposed three
requirements that must be complied with for an agreement to be considered
valid insofar as the Philippines is concerned. These three requirements are:
(1) the agreement must be embodied in a treaty; (2) the treaty must be duly
concurred in by 2/3 votes of all the members of the Senate; and (3) the
agreement must be recognized as a treaty by the other State. On the second
requirement, the two-thirds concurrence of all the members of the Senate,
the people’s representative, may be viewed as the people’s “voluntary
submission” of their sovereignty so they can reap the greater benefits of the
agreement that the President, as policymaker, entered into. When the
Congress so requires, the agreement should be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose. This
additional requirement evinces the framers’ intent to emphasize the people’s
direct participation in treaty-making.
Same; Same; Mutual Defense Treaty; View that an attack on either
party will be acted upon in accordance with their constitutional processes
and any armed attack on either party will be brought to the

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attention of the United Nations (UN) for immediate action.—The 1951

MDT provides for an alliance — that both nations would support one
another if either the Philippines or the U.S. would be attacked by an external
party. It states that each party shall either, separately or jointly, through
mutual aid, acquire, develop and maintain their capacity to resist armed
attack. It provides for a mode of consultations to determine the 1951 MDT’s
appropriate implementation measures and when either of the parties
determines that their territorial integrity, political independence, or national
security is threatened by armed attack in the Pacific. An attack on either
party will be acted upon in accordance with their constitutional processes
and any armed attack on either party will be brought to the attention of the
United Nations for immediate action. The accord defines the meaning of an
armed attack as including armed attacks by a hostile power on a
metropolitan area of either party, on the island territories under their
jurisdiction in the Pacific, or on their armed forces, public vessels, or
aircrafts in the Pacific. The U.S. government guaranteed to defend the
security of the Philippines against external aggression but not necessarily
against internal subversion. The treaty expressly stipulates that its terms are
indefinite and would last until one or both parties terminate the agreement
by a one-year advance notice. The treaty subsequently became the basis for
an annual joint exercise, known as Balikatan, between the Philippines and
the U.S.
Same; Same; Visiting Forces Agreement; View that the 1998 Visiting
Forces Agreement (VFA) allows the rotational presence of United States
(U.S.) military forces and their operations anywhere in the Philippines for a
temporary but undefined length of time to train and inter-operate with the
Philippine armed forces and to use their facilities.—In line with the
American approach, the 1998 VFA allows the rotational presence of U.S.
military forces and their operations anywhere in the Philippines for a
temporary but undefined length of time to train and inter-operate with the
Philippine armed forces and to use their facilities. The Philippines retains
jurisdiction over criminal cases, including capital offenses, involving U.S.
troops.
Enhanced Defense Cooperation Agreement; View that the agreement
allows the United States (U.S.) to station troops and operations on
Philippine territory without establishing a permanent base and with the
stipulation that the U.S. is not allowed to store or

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position any nuclear weapons on Philippine territory.—The EDCA

was signed on April 28, 2014, in Manila, by Philippine Defense Secretary
Voltaire Gazmin, and U.S. Ambassador to the Philippines Philip Goldberg,
in time for the official state visit by U.S. President Barack Obama. The 10-
year accord is the second military agreement between the U.S. and the
Philippines (the first being the 1998 VFA) since American troops withdrew
from its Philippines naval base in 1992. The agreement allows the U.S. to
station troops and operations on Philippine territory without establishing a
permanent base and with the stipulation that the U.S. is not allowed to store
or position any nuclear weapons on Philippine territory.
Same; View that the Enhanced Defense Cooperation Agreement
(EDCA) is effective for ten (10) years, unless both the United States (U.S.)
and the Philippines formally agree to alter it.—The EDCA is effective for
10 years, unless both the U.S. and the Philippines formally agree to alter it.
The U.S. is bound to hand over any and all facilities in the “Agreed
Locations” to the Philippine government upon the termination of the
Agreement.
Military Bases; View that a military base connotes the presence, in a
relatively permanent degree, of troops and facilities in a particular area.—
There exists no rigid definition of a military base. However, it is a term used
in the field of military operations and thus has a generally accepted
connotation. The U.S. Department of Defense (DoD) Dictionary of Military
and Associated Terms defines a base as “an area or locality containing
installations which provide logistic or other support”; home carrier. Under
our laws, we find the definition of a military base in Presidential Decree No.
1227 which states that a military base is “any military, air, naval, coast
guard reservation, base, fort, camp, arsenal, yard, station, or installation in
the Philippines.” A military base connotes the presence, in a relatively
permanent degree, of troops and facilities in a particular area.
Enhanced Defense Cooperation Agreement; View that the Enhanced
Defense Cooperation Agreement (EDCA) allows United States (U.S.)
military personnel to enter and remain in Philippine territory. It grants the
U.S. the right to construct structures and assemblies. It also allows the U.S.
to preposition defense equipment, supplies and materiel. The U.S. personnel
may also use the Agreed Locations to refuel aircraft and bunker vessels.—
To go back to the EDCA, it nota-

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bly allows the U.S. to use the Agreed Locations for the following
activities: “training, transit, support and related activities, refueling of
aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels,
and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deploying forces and
materiel and such other activities as the Parties may agree.” In order to
carry out these activities, the EDCA allows U.S. military personnel to enter
and remain in Philippine territory. It grants the U.S. the right to construct
structures and assemblies. It also allows the U.S. to preposition defense
equipment, supplies and materiel. The U.S. personnel may also use the
Agreed Locations to refuel aircraft and bunker vessels.
Mutual Defense Treaty; Visiting Forces Agreement; View that neither
the 1951 Mutual Defense Treaty (MDT) nor the 1998 Visiting Forces
Agreement (VFA) authorized stockpiling. The 1951 MDT focused on
developing the Philippines and the United States’ (U.S.’) capacity to resist
an armed attack while 1998 VFA focused on the entry and exit of U.S. troops
in the country. No provision in either treaty specifically allows stockpiling of
military materiel.—Notably, neither the 1951 MDT nor the 1998 VFA
authorized stockpiling. The 1951 MDT focused on developing the
Philippines and the U.S.’s capacity to resist an armed attack while 1998
VFA focused on the entry and exit of US troops in the country. No provision
in either treaty specifically allows stockpiling of military materiel. In sum,
the Agreed Locations mentioned in the EDCA are areas where the U.S. can
perform military activities in structures built by its personnel. The extent of
the U.S.’ right to use of the Agreed Locations is broad enough to include
even the stockpiling of weapons and the shelter and repair of vessels over
which the U.S. personnel has exclusive control. Clearly, this is a military
base as this term is ordinarily understood. Further, as we held in BAYAN
(Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449 (2000), Article
XVIII, Section 25 refers to three different situations: the presence of foreign
military bases, troops, or facilities. Even assuming that the EDCA is not a
basing agreement, it nevertheless involves the deployment of troops and
facilities in Philippine soil. As I have already stated, the EDCA allows U.S.
forces to enter and remain in the Philippines. It defines U.S. forces to
include U.S. military and civilian personnel and U.S. Armed Forces
property,

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equipment, and materiel. The EDCA itself provides that the U.S. can
deploy forces and materiel in the Agreed Locations.
View that that the Enhanced Defense Cooperation Agreement (EDCA)
allows this arrangement for an initial period of ten (10) years, to continue
automatically unless terminated, is further proof that it pertains to the
presence in Philippine soil of foreign military bases, troops, and facilities on
a more or less permanent basis.—That the EDCA allows this arrangement
for an initial period of 10 years, to continue automatically unless terminated,
is further proof that it pertains to the presence in Philippine soil of foreign
military bases, troops, and facilities on a more or less permanent basis.
Note, at this point, that the Senators, during the ratification of the 1998
VFA, observed that it only covers temporary visits of U.S. troops and
personnel in the country. These Senators gave their consent to the 1998
VFA on the knowledge that the U.S. forces’ stay in the country may last
only up to three weeks to six months per batch. This temporary stay of U.S.
forces in the Philippines under the 1998 VFA means that it does not cover,
or approve of, a more permanent stay of US forces and their equipment in
the Philippines. Significantly, this is the key characteristic of the Agreed
Locations in the EDCA. For, if the EDCA had not envisioned the stay of
U.S. forces and equipment in the Agreed Locations in the Philippines for a
period longer than envisioned in the 1998 VFA, it would not have added
obligations regarding the storage of their equipment and materiel. The more
permanent nature of the EDCA, in contrast to the 1998 VFA, indicates a
change in the tenor of the agreement in the EDCA, one that does not merely
implement the 1998 VFA.
Same; Same; View that the introduction of military bases or their
equivalent, of troops, and of military facilities into the Philippines can now
only take place by way of a treaty concurred in by the Senate.—The detailed
arrangements that expired with the 1947 MBA were not carried over to the
1951 MDT as this treaty only generally provided for the defense and
alliance relationship between the U.S. and the Philippines. Thus, there were
no specific policies on military bases, troops, and facilities that could be
implemented and operationalized by subsequent executive agreements on
the basis of the MDT. In particular, the terms of the 1947 MBA that had
expired and had not been renewed cannot be deemed carried

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over to the 1951 MDT. If any such future agreements would be made
after the effectivity of the 1987 Constitution, then such agreements would
be governed by Article XVIII, Section 25 of the new Constitution.
Significantly, when the 1987 Constitution and its Article XVIII, Section 25
took effect, no absolute prohibition against the introduction of new U.S.
bases, troops, and facilities was put in place. In fact the 1951 MDT then still
existed as a general defense alliance of the Philippines and the U.S. against
armed attack by third parties. But the introduction of military bases or their
equivalent, of troops, and of military facilities into the Philippines can now
only take place by way of a treaty concurred in by the Senate.
(EDCA) introduces new arrangements and obligations to those existing
under the 1998 Visiting Forces Agreement (VFA); hence, the EDCA should
be in the form of a treaty.—Is the EDCA merely an agreement
implementing the 1998 VFA which already allows the limited entry of U.S.
military troops and the construction of facilities? The quick and short
answer to the above question is — No, the EDCA does not implement the
1998 VFA as the EDCA in fact provides a wider arrangement than the 1998
VFA with respect to the entry of military bases, troops, and facilities into the
Philippines. A naughty view is that the 1998 VFA should form part of the
EDCA and not the other way around. Another reality, based on the treaty-
executive agreement distinctions discussed above, is that the EDCA
introduces new arrangements and obligations to those existing under the
1998 VFA; hence, the EDCA should be in the form of a treaty.
Visiting Forces Agreement; View that the Visiting Forces Agreement
(VFA) itself does not authorize United States (U.S.) troops to permanently
stay in the Philippines, nor authorize any activity related to the
establishment and the operation of bases, as these activities had been
defined under the 1947 Military Bases Agreement (MBA).—Harking back to
the 1947 MBA and its clear and certain terms, what comes out boldly is that
the 1998 VFA is not an agreement that covers “activities” in the way that
the 1947 MBA did; it is simply an agreement regulating the status of and
the treatment to be accorded to U.S. armed forces personnel and their
aircraft and vehicles while visiting the Philippines. The agreement itself
does not authorize U.S. troops to permanently stay in the Philippines nor
authorize any activity related

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to the establishment and the operation of bases, as these activities had

been defined under the 1947 MBA.
Enhanced Defense Cooperation Agreement; Agreed Locations; View
that within the Agreed Locations, the United States (U.S.) can also
preposition defense equipment, supplies, and materiel over which the U.S.
forces shall have exclusive use and control. Clearly, the right to deploy
weapons can be undertaken even if it is not in the pursuit of joint activities
for common security interests.—A reading of the EDCA’s provisions shows
that the rights and privileges granted to the U.S. do not always carry a
concomitant right on the part of the Philippines nor do they involve joint
exercises. While the EDCA mentions that the Agreed Locations may be
used for “security cooperation exercises” and “joint and combined training
activities,” the provisions of the EDCA also provide for the conduct of other
activities beyond the 1951 MDT and the 1998 VFA. Within the Agreed
Locations, the U.S. may conduct trainings for its troops, transit, support and
related activities. The EDCA also allows the U.S. to use the Agreed
Locations to refuel aircraft, bunker vessels, temporarily maintain vehicles,
vessels and aircraft. Significantly, it does not provide for any qualification
on the purpose for the entry of these vessels, vehicles, and aircraft into
Philippine jurisdiction. The EDCA also permits the temporary
accommodation of personnel, again without any qualification as to the
purpose of their visit. The U.S. forces may also engage in communications
activities including the use of its own radio spectrum, similarly without any
limitation as to the purpose by which such communications shall be carried
out. Further, within the Agreed Locations, the U.S. can also preposition
defense equipment, supplies, and materiel over which the U.S. forces shall
have exclusive use and control. Clearly, the right to deploy weapons can be
undertaken even if it is not in the pursuit of joint activities for common
security interests. These rights, granted to the U.S. under the EDCA, do not
contain an element of mutuality in the sense that mutuality is reflected in
the 1951 MDT and the 1998 VFA. As these rights go beyond the earlier
treaties and are, in fact, independent sources of rights and obligations
between the U.S. and the Philippines, they cannot be mere details of
implementation of both the 1951 MDT and the 1998 VFA.
(EDCA) cannot be considered to be a simple implementation of the

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1998 Visiting Forces Agreement (VFA). Rather, it is a continuation of

the 1998 VFA under new dimensions. These dimensions should not and
cannot be hidden behind reaffirmations of existing 1998 VFA obligations.—
While the EDCA affirms the treatment of U.S. personnel and U.S. forces in
the Philippines, it at the same time introduces the Philippines’ obligation to
recognize the authority of U.S. Forces in the “Agreed Locations.” Under
the EDCA, U.S. forces can now preposition and store defense equipment,
supplies, and materiel at Agreed Locations. They shall have unimpeded
access to Agreed Locations for all matters relating to the prepositioning and
storage of defense equipment, supplies, and materiel. Lastly, the EDCA
authorizes the U.S. forces to exercise all rights and authorities within the
Agreed Locations that are necessary for their operational control or defense.
In contrast, the 1998 VFA only refers to the tax and duty-free entry of U.S.
Government equipment in connection with the activities during their visit.
In the same manner, and despite being in a different class as U.S. personnel
and U.S. forces, U.S. contractors are also allowed “unimpeded access” to
the Agreed Locations when it comes to all matters relating to the
prepositioning and storage of defense equipment, supplies and materiel.
Thus, these groups of people (U.S. personnel, U.S. forces and U.S.
contractors) have been referred to in the EDCA not merely to implement the
1998 VFA, but to further their roles in the Agreed Locations that the EDCA
authorizes. From these perspectives, the EDCA cannot be considered to be a
simple implementation of the 1998 VFA. Rather, it is a continuation of the
1998 VFA under new dimensions. These dimensions should not and cannot
be hidden behind reaffirmations of existing 1998 VFA obligations. These
added dimensions reinforce the idea of military bases, as it allows them
access to the Agreed Locations that, as I had earlier mentioned, is the
cornerstone of the EDCA. From the legal end, the obligations under the
EDCA, not its policy declarations and characterization, should be decisive
in determining whether Section 25, Article XVIII applies.
(EDCA) is thus a new agreement that touches on military bases, troops, and
facilities beyond the scope of the 1951 Mutual Defense Treaty (MDT) and
the 1998 Visiting Forces Agreement (VFA), and should be covered by a
treaty pursuant to Article XVIII, Section 25 and Article VII, Section 21, both
of the 1987 Constitution.—The EDCA is

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thus a new agreement that touches on military bases, troops, and

facilities beyond the scope of the 1951 MDT and the 1998 VFA, and should
be covered by a treaty pursuant to Article XVIII, Section 25 and Article VII,
Section 21, both of the 1987 Constitution. Without the referral and
concurrence by the Senate, the EDCA is constitutionally deficient and,
hence, cannot be enforced in our country.

LEONEN, J., Dissenting Opinion:

Foreign Policy; Security Alliance; Defense Cooperation; View that
foreign policy indeed includes security alliances and defense cooperation
among states.—Foreign policy indeed includes security alliances and
defense cooperation among states. In the conduct of negotiations and in the
implementation of any valid and binding international agreement, Article II
of the Constitution requires: Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations. . .
. . Section 7. The State shall pursue an independent foreign policy. In its
relations with other states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to self-
determination.
Presidency; Judicial Review; View that the power of the President as
Commander-in-Chief and head of state is limited by the sovereign through
judicially determinable constitutional parameters.—Generally, the
President’s discretion is plenary in matters falling within executive
functions. He is the chief executive, having the power of control over all
executive departments, bureaus, and offices. Further, “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 [and] [i]n
many ways, the President is the chief architect of the nation’s foreign
policy.” The President is also the Commander-in-Chief of all armed forces
of the Philippines. He has the power to “call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion . . . suspend the
privilege of the writ of habeas corpus or place the Philippines or any part
thereof under martial law” subject to the conditions and requisites under the
provision. However, the President’s discretion to allow our participation in
the use of force — whether by commit-

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ting our own military assets and personnel or by allowing our territory
to be used as waypoints, refueling or staging areas — is also constrained by
the Constitution. In this sense, the power of the President as Commander-in-
Chief and head of state is limited by the sovereign through judicially
determinable constitutional parameters.
Foreign Military Bases; International Agreements; View that the
prohibition in Article XVIII, Section 25 relates only to international
agreements involving foreign military bases, troops, or facilities.—The
prohibition in Article XVIII, Section 25 relates only to international
agreements involving foreign military bases, troops, or facilities. It does not
prohibit the President from entering into other types of agreements that
relate to other aspects of his powers as Commander-in-Chief.
Same; View that there is nothing in Article XVIII, Section 25 that
defines the extent and scope of the presence of foreign military bases,
troops, or facilities, thereby justifying a distinction between their initial
entry and subsequent activities.—There is nothing in Article XVIII, Section
25 that defines the extent and scope of the presence of foreign military
bases, troops, or facilities, thereby justifying a distinction between their
initial entry and subsequent activities. Its very structure shows that Article
XVIII, Section 25 is not a mere gateway for the entry of foreign troops or
facilities into the Philippines for them to carry out any activity later on. The
provision contains measures designed to protect our country in the broader
scheme of international relations. Military presence shapes both foreign
policy and political relations. War — or the threat thereof through the
position of troops, basing, and provision of military facilities — is an
extension of politic, thus: The use of military force is a means to a higher
end — the political object. War is a tool that policy uses to achieve its
objectives and, as such, has a measure of rational utility. So, the purpose for
which the use of force is intended will be the major determinant of the
course and character of a war. As Clausewitz explains, war “is controlled by
its political object,” which will set its course, prescribe the scale of means
and effort which is required, and makes its influence felt throughout down to
the smallest operational detail.
Enhanced Defense Cooperation Agreement; View that the Enhanced
Defense Cooperation Agreement (EDCA) was negotiated in

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private between representatives of the President and the United States

(U.S.).—The EDCA was negotiated in private between representatives of
the President and the United States. The complete text of the negotiations
was presented to the public in time for the visit of the President of the
United States. During its presentation, the President’s representatives took
the position that no further public discussion would be held that might affect
the terms of the EDCA. The President presented the EDCA as a final
product withdrawn from Senate or Congressional input. The President
curtailed even the possibility of full public participation through a
Congressional Resolution calling for a referendum on this matter.
Same; Foreign Policy; View that by allowing the entry of United States
(U.S.) military personnel, their deployment into undefined missions here and
abroad, and their use of military assets staged from our territory against
their present and future enemies based on a general provision in the Visiting
Forces Agreement (VFA), the majority now undermines the measures built
into our present Constitution to allow the Senate, Congress and our People
to participate in the shaping of foreign policy.—By allowing the entry of
United States military personnel, their deployment into undefined missions
here and abroad, and their use of military assets staged from our territory
against their present and future enemies based on a general provision in the
VFA, the majority now undermines the measures built into our present
Constitution to allow the Senate, Congress and our People to participate in
the shaping of foreign policy. The EDCA may be an agreement that
“deepens defense cooperation” between the Philippines and the United
States. However, like the 1947 Military Bases Agreement, it is the
agreement more than any other that will extensively shape our foreign
policy.
Constitutional Law; Treaties; Executive Agreements; View that whether
an international agreement is to be regarded as a treaty or as an executive
agreement depends on the subject matter covered by and the temporal
nature of the agreement.—That the President may enter into international
agreements as chief architect of the Philippines’ foreign policy has long
been acknowledged. However, whether an international agreement is to be
regarded as a treaty or as an executive agreement depends on the subject
matter covered by and the temporal nature of the agreement. Commissioner
of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), differentiated
interna-

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tional agreements that require Senate concurrence from those that do

not: International agreements involving political issues or changes of
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. 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.
Foreign Military Bases; View that the prohibition against “foreign
military bases, troops, or facilities,” unless covered by treaty or allowed
through a referendum, becomes effective “after the expiration in 1991 of the
Agreement . . . concerning Military Bases.”—While these provisions in the
1951 Mutual Defense Treaty could reasonably be interpreted to include
activities done jointly by the Philippines and the United States, nothing in
International Law nor in the Constitution can be reasonably read as referring
to this treaty for the authorization for “foreign military bases, troops, or
facilities” after the ratification of the 1987 Constitution. Again, the
constitutional provision reads: 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.
(Emphasis supplied) There is a time stamp to the obligation under this
provision. The prohibition against “foreign military bases, troops, or
facilities,” unless covered by treaty or allowed through a referendum,
becomes effective “after the expiration in 1991 of the Agreement . . .
concerning Military Bases.” The treaty about to expire refers to the 1947
Military Bases Agreement as amended. This was still in effect at the time of
the drafting, submission, and ratification of the 1987 Constitution.
Constitutional Law; Foreign Military Bases; Mutual Defense Treaty;
View that the 1951 treaty is not the treaty contemplated in Article XVIII,
Section 25.—The 1951 Mutual Defense Treaty was in effect at the time of
the ratification of the Constitution in 1987. It was also in effect even after
the expiration of the Military Bases

292

Agreement in 1991. We could reasonably assume that those who

drafted and ratified the 1987 Constitution were aware of this legal situation
and of the broad terms of the 1951 treaty yet did not expressly mention the
1951 Mutual Defense Treaty in Article XVIII, Section 25. We can conclude,
with sturdy and unassailable logic, that the 1951 treaty is not the treaty
contemplated in Article XVIII, Section 25.
Treaties; Rebus Sic Stantibus; View that Article 62 of the Vienna
Convention on the Law of Treaties provides for the principle of “rebus sic
stantibus,” in that a fundamental change of circumstances may be a ground
to terminate or withdraw from a treaty.—Parenthetically, Article 62 of the
Vienna Convention on the Law of Treaties provides for the principle of
“rebus sic stantibus,” in that a fundamental change of circumstances may be
a ground to terminate or withdraw from a treaty. Dean Merlin M. Magallona
is of the view that there has been a fundamental change in circumstances
that allows the Philippines to terminate the 1951 Mutual Defense Treaty.
Although we should acknowledge this suggestion during the oral arguments
by petitioners, we do not need to go into such an issue and at this time to be
able to resolve the controversies in this case. We await a case that will
provide a clearer factual backdrop properly pleaded by the parties. In
addition, the Mutual Defense Treaty is not the treaty contemplated by
Article XVIII, Section 25 on account of its subject matter. In paragraph 5 of
its Preamble, the Mutual Defense Treaty articulates the parties’ desire “to
strengthen their present efforts to collective defense for the preservation of
peace and security pending the development of a more comprehensive
system of regional security in the Pacific Area.”
Same; Visiting Forces Agreement; View that the Visiting Forces
Agreement (VFA) cannot also be said to be the treaty required in Article
XVIII, Section 25. This is because the United States (U.S.), as the other
contracting party, has never treated it as such under its own domestic laws.
—The VFA cannot also be said to be the treaty required in Article XVIII,
Section 25. This is because the United States, as the other contracting party,
has never treated it as such under its own domestic laws. The VFA has the
same status as that of the 1947 Military Bases Agreement in that it is merely
an executive agreement on the part of United States: As articulated by
Constitutional Commissioner Blas F. Ople in the 1986 Constitutional Com-

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mission deliberations on this provision, the 1947 RP-US Military

Bases Agreement was ratified by the Philippine Senate, but not by the
United States Senate. In the eyes of Philippine law, therefore, the Military
Bases Agreement was a treaty, but by the laws of the United States, it was
a mere executive agreement. This asymmetry in the legal treatment of the
Military Bases Agreement by the two countries was believed to be a slur to
our sovereignty.
Same; View that this court’s interpretation of a treaty under Article
XVIII, Section 25 in BAYAN (Bagong Alyansang Makabayan) v. Zamora,
342 SCRA 449 (2000), which did away with the requirement that the
agreement be recognized as a treaty by the other contracting party, has
resulted in an absurd situation of political asymmetry between the United
States (U.S.) and the Philippines.—This court’s interpretation of a treaty
under Article XVIII, Section 25 in BAYAN (Bagong Alyansang Makabayan)
v. Zamora, 342 SCRA 449 (2000), which did away with the requirement
that the agreement be recognized as a treaty by the other contracting party,
has resulted in an absurd situation of political asymmetry between the
United States and the Philippines. A relationship where both parties are on
equal footing must be demanded, and from one state to another. The
Philippine government must be firm in requiring that the United States
establish stability in its international commitment, both by legislation and
jurisprudence. The doctrine laid down in Bayan, insofar as the VFA is
concerned, should now be revisited in light of new circumstances and
challenges in foreign policy and international relations.
Executive Agreements; Enhanced Defense Cooperation Agreement;
View that an executive agreement merely provides for the detailed
adjustments of national policies or principles already existing in other
treaties, statutes, or the Constitution; The Enhanced Defense Cooperation
Agreement (EDCA) contains significant and material obligations not
contemplated by the Visiting Forces Agreement (VFA). As an executive
agreement, it cannot be given any legal effect.—As discussed earlier, an
executive agreement merely provides for the detailed adjustments of
national policies or principles already existing in other treaties, statutes, or
the Constitution. It involves only the enforcement of clear and specific
provisions of the Constitution, law, or treaty. It cannot amend nor invalidate
an existing statute, treaty, or provision in the Constitution. It includes
agreements that

294

are of a temporary nature. This is not the case with the EDCA. The
EDCA contains significant and material obligations not contemplated by the
VFA. As an executive agreement, it cannot be given any legal effect.
Enhanced Defense Cooperation Agreement; Foreign Military Bases;
View that United States (U.S.) military forces will not only be allowed to
“visit” Philippine territory to do a transient military training exercise with
their Philippine counterparts.—United States military forces will not only
be allowed to “visit” Philippine territory to do a transient military training
exercise with their Philippine counterparts. They are also allowed to
execute, among others, the following scenarios: One: Parts of Philippine
territory may be used as staging areas for special or regular United States
military personnel for intervention in conflict areas in the Southeast Asian
region. This can be in the form of landing rights given to their fighter jets
and stealth bombers or way stations for SEALS or other special units
entering foreign territory in states not officially at war with the Philippines.
Two: Parts of Philippine territory may be used to supplement overt
communication systems of the United States forces. For instance,
cyberwarfare targeting a state hostile to the United States can be launched
from any of the Agreed Locations to pursue their interests even if this will
not augur well to Philippine foreign policy. Three: Parts of Philippine
territory may be used to plan, deploy, and supply covert operations done by
United States contractors such as Blackwater and other mercenary groups
that have been used by the United States in other parts of the world. The
EDCA covers these types of operations within and outside Philippine
territory. Again, the consequences to Philippine foreign policy in cases
where targets are found in neighboring countries would be immeasurable.
The Visiting Forces Agreement does not cover these sample activities. Nor
does it cover United States contractors.
Same; Same; Agreed Locations; View that blanket authority over
Agreed Locations is granted under Article VI, Section 3 of the Enhanced
Defense Cooperation Agreement (EDCA). The United States (U.S.) forces
are given a broad range of powers with regard to the Agreed Locations that
are “necessary for their operational control or defense.”—Blanket
authority over Agreed Locations is granted under Article VI, Section 3 of
the EDCA. The United States forces are given a broad range of powers with
regard to the Agreed Loca-

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tions that are “necessary for their operational control or defense.” This
authority extends to the protection of United States forces and contractors.
In addition, the United States is merely obligated to coordinate with
Philippine authorities the measures they will take in case they deem it
necessary to take action.
Same; Same; Same; Visiting Forces Agreement; View that what is clear
is that the Agreed Locations become a platform for the United States (U.S.)
to execute its new military strategy and strengthen its presence in the Asia-
Pacific, which is clearly outside the coverage of the Visiting Forces
Agreement (VFA).—If, indeed, the goal is only to enhance mutual defense
capabilities under the Mutual Defense Treaty through conduct of joint
military exercises authorized by the VFA, then it behooves this court to ask
the purpose of providing control and authority over Agreed Locations here
in the Philippines when it is outside the coverage of both the Mutual
Defense Treaty and the VFA. Through a vague reference to the VFA,
respondents fail to establish how the EDCA merely implements the VFA.
They cannot claim that the provisions of the EDCA merely make use of the
authority previously granted under the VFA. What is clear is that the Agreed
Locations become a platform for the United States to execute its new
military strategy and strengthen its presence in the Asia-Pacific, which is
clearly outside the coverage of the VFA.
Same; Same; Same; View that the Enhanced Defense Cooperation
Agreement (EDCA) authorizes the use of Philippine territory as bases of
operations. Although not as permanent as those set up pursuant to the 1947
Military Bases Agreement (MBA), they are still foreign military bases within
the contemplation of Article XVIII, Section 25 of the Constitution;
Ownership of the Agreed Locations under the EDCA is a diluted concept,
with the Philippine government devoid of any authority to set the
parameters for what may and may not be conducted within the confines of
these areas.—The EDCA authorizes the use of Philippine territory as bases
of operations. Although not as permanent as those set up pursuant to the
1947 Military Bases Agreement, they are still foreign military bases within
the contemplation of Article XVIII, Section 25 of the Constitution. The
development and use of these Agreed Locations are clearly within the
discretion of the United States. The retention of ownership by the
Philippines under Article V(1) of the EDCA does not temper the wide
latitude accorded to the other contracting party.

296

At best, the United States’ only obligation is to consult and coordinate

with our government. Under the EDCA, the consent of the Philippine
government does not extend to the operations and activities to be conducted
by the United States forces and contractors. Operational control remains
solely with the United States government. The agreement did not create a
distinction between domestic and international operations. Ownership of the
Agreed Locations under the EDCA is a diluted concept, with the Philippine
government devoid of any authority to set the parameters for what may and
may not be conducted within the confines of these areas.
(EDCA) has an open-ended duration. Despite having an initial term of ten
(10) years, Article XII(4) specifically provides for the automatic
continuation of the agreement’s effectivity until a party communicates its
intent to terminate.—The EDCA has an open-ended duration. Despite
having an initial term of 10 years, Article XII(4) specifically provides for
the automatic continuation of the agreement’s effectivity until a party
communicates its intent to terminate. The purpose of the Agreed Locations
is also open-ended. At best, its definition and description of rights provide
that the areas shall be for the use of United States forces and contractors.
However, short of referring to Agreed Locations as bases, the EDCA
enumerates activities that tend to be military in nature, such as bunkering of
vessels, pre-positioning of equipment, supplies, and materiel, and deploying
forces and materiel. The United States is also allowed to undertake the
construction of permanent facilities, as well as to use utilities and its own
telecommunications systems.
Same; Visiting Forces Agreement; Treaties; View that the Enhanced
Defense Cooperation Agreement (EDCA) amends the Visiting Forces
Agreement (VFA). Since the VFA is a treaty, the EDCA cannot be
implemented; Treaties such as the VFA cannot be amended by an executive
agreement.—The EDCA amends the VFA. Since the VFA is a treaty, the
EDCA cannot be implemented. Treaties, being of the same status as that of
municipal law, may be modified either by another statute or by the
Constitution itself. Treaties such as the VFA cannot be amended by an
executive agreement.
Remedial Law; Civil Procedure; Judgments; View that ruling on
abstract cases presents the danger of foreclosing litigation between

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real parties, and rendering advisory opinions presents the danger of a

court that substitutes its own imagination and predicts facts, acts, or events
that may or may not happen.—It is not this court’s duty to “rule on abstract
and speculative issues barren of actual facts.” Ruling on abstract cases
presents the danger of foreclosing litigation between real parties, and
rendering advisory opinions presents the danger of a court that substitutes its
own imagination and predicts facts, acts, or events that may or may not
happen. Facts based on judicial proof must frame the court’s discretion, as
“[r]igor in determining whether controversies brought before us are
justiciable avoids the counter majoritarian difficulties attributed to the
judiciary.” Abstract cases include those where another political department
has yet to act. In other words, a case not ripe for adjudication is not yet a
concrete case.
Political Law; Political Question Doctrine; View that in Diocese of
Bacolod v. COMELEC, 747 SCRA 1 (2015), the Supreme Court (SC) held
that the political question doctrine never precludes this court’s exercise of
its power of judicial review when the act of a constitutional body infringes
upon a fundamental individual or collective right.—In Diocese of Bacolod
v. COMELEC, 747 SCRA 1 (2015), this court held that the political question
doctrine never precludes this court’s exercise of its power of judicial review
when the act of a constitutional body infringes upon a fundamental
individual or collective right. However, this will only be true if there is no
other constitutional body to whom the discretion to make inquiry is
preliminarily granted by the sovereign. Ruling on the challenge to the
content of the EDCA will preclude and interfere with any future action on
the part of the Senate as it inquires into and deliberates as to whether it
should give its concurrence to the agreement or whether it should advise the
President to reopen negotiations to amend some of its provisions. It is the
Senate, through Article VII, Section 21 in relation to Article XVIII, Section
25, that was given the discretion to make this initial inquiry exclusive of all
other constitutional bodies, including this court. A policy of deference and
respect for the allocation of such power by the sovereign to a legislative
chamber requires that we refrain from making clear and categorical rulings
on the constitutional challenges to the content of the EDCA.
Constitutional Law; Enhanced Defense Cooperation Agreement; View
that while the Enhanced Defense Cooperation Agreement (EDCA) is a
formal and official memorial of the results of negotia-

298


tions between the Philippines and the United States (U.S.), it is not yet
effective until the Senate concurs or there is compliance with Congressional
action to submit the agreement to a national referendum in accordance with
Article XVIII, Section 25 of the Constitution.—The judiciary has the duty to
ensure that the acts of all branches of government comply with the
fundamental nature of the Constitution. While the EDCA is a formal and
official memorial of the results of negotiations between the Philippines and
the United States, it is not yet effective until the Senate concurs or there is
compliance with Congressional action to submit the agreement to a national
referendum in accordance with Article XVIII, Section 25 of the
Constitution.
Same; View that by abbreviating the constitutional process, the
Supreme Court (SC) makes itself vulnerable to a reasonable impression that
we do not have the courage to enforce every word, phrase, and punctuation
in the Constitution promulgated by our People.—By abbreviating the
constitutional process, this court makes itself vulnerable to a reasonable
impression that we do not have the courage to enforce every word, phrase,
and punctuation in the Constitution promulgated by our People. We will
stand weak, as an institution and by implication as a state, in the community
of nations. In clear unequivocal words, the basic instrument through which
we exist requires that we interpret its words to make real an independent
foreign policy. It requires measures be fully publicly discussed before any
foreign resource capable of making war with our neighbors and at the
command of a foreign sovereign — foreign military bases, troops and
facilities — becomes effective.
Mutual Defense Treaty; Visiting Forces Agreement; View that the 1951
Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) was
in effect when the Chinese invaded certain features within our Exclusive
Economic Zone (EEZ) in the West Philippine Sea. The Americans did not
come to our aid; The commitment of the United States (U.S.) remains
ambiguous. The U.S.’ statement is that it will not interfere in those types of
differences we have with China, among others.—The 1951 Mutual Defense
Treaty and the Visiting Forces Agreement was in effect when the Chinese
invaded certain features within our Exclusive Economic Zone in the West
Philippine Sea. The Americans did not come to our aid. The President of the
United States visited and, on the occasion of that visit, our own President
announced the completion of the EDCA. No clear,

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unequivocal, and binding commitment was given with respect to the

applicability of the Mutual Defense Treaty to the entirety of our valid legal
claims in the West Philippine Sea. The commitment of the United States
remains ambiguous. The United States’ statement is that it will not interfere
in those types of differences we have with China, among others.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Harry L. Roque, Jr., Gilbert Teruel Andres, Romel R. Bagares,
Ethel C. Avisado and Evalyn Ursua for petitioners in G.R. No.
212426.
Rachel F. Pastores, Amylyn B. Sato, Francis Anthony P.
Principe, Sandra Jill S. Santos, Carlos A. Montemayor, Maria
Kristina C. Conti and Maneeka Asistol Sarza for petitioners in G.R.
No. 212444.
Remigio D. Saladero, Jr., Noel V. Neri and Vicente Jaime M.
Topacio for petitioners-in-intervention Kilusang Mayo Uno, et al.
Rene A.V. Saguisag petitioner in G.R. No. 212426 and for
petitioner-intervenor Rene A.Q. Saguisag, Jr.
SERENO, CJ.:

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 consti-
_______________
1 Petition of Saguisag, et al., Rollo (G.R. No. 212426, Vol. I),

pp. 3-66; Petition of Bayan, et al., Rollo (G.R. No. 212444, Vol. I), pp. 3-101.
2 Petition of Saguisag, et al., p. 5, Rollo (G.R. No. 212426, Vol. I), p. 7; Petition
of Bayan, et al., p. 5, Rollo (G.R. No. 212444, Vol. I), p. 7.

300


tutional provisions.3 In reply, respondents argue that petitioners
lack standing to bring the suit. To support the legality of their
actions, respondents invoke the 1987 Constitution, treaties, and
judicial precedents.4
A proper analysis of the issues requires this Court to lay down at
the outset the basic parameters of the constitutional powers and roles
of the President and the Senate in respect of the above issues. A
more detailed discussion of these powers and roles will be made in
the latter portions.
I. Broad Constitutional Context of the Powers of the President:
Defense, Foreign Relations, and EDCA

A. The Prime Duty of the
State and the Consolida-
tion of Executive Power
in the President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin
ko nang buong katapatan at sigasig ang aking mga tungkulin bilang
Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang
Konstitusyon, ipatutupad ang mga batas nito, magiging
makatarungan sa bawat tao, at itatalaga ang aking sarili sa
paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
– Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa
Saligang Batas5
_______________
3 Principally the following provisions under the Constitution: Art. VII, Sec. 21;
Art. XVIII, Sec. 25; Art. I; Art. II, Secs. 2, 7, & 8; Art. VI, Sec. 28(4); and Art. VIII,
Sec. 1. See Petition of Saguisag, et al., pp. 23-59, Rollo (G.R. No. 212426, Vol. I), pp.
25-61; Petition of Bayan, et al., Rollo pp. 23-93 (G.R. No. 212444, Vol. I), pp. 25-95.
4 Memorandum of the OSG, pp. 8-38, Rollo (G.R. No. 212426, Vol. I), pp. 438-
468.
5 The Protocol, Ceremony, History, and Symbolism of the Presidential
Inauguration, The Presidential Museum and Library, available at
<http://malacanang.gov.ph/1608-the-protocol-ceremony-

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VOL. 779, JANUARY 12, 2016 301


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

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

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

The duty to protect the State and its people must be carried out
earnestly and effectively throughout the whole territory of the
Philippines in accordance with the constitutional provision on
national territory. Hence, the President of the Philippines, as the sole
repository of executive power, is the guardian of the Philippine
archipelago, including all the islands and waters embraced therein
and all other territories over which it has sovereignty or jurisdiction.
These territories consist of its terrestrial, fluvial, and aerial domains;
including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas; and the waters around, between,
_______________
history-and-symbolism-of-the-presidential-inauguration> (last visited 5 Nov.

2015).
6 Constitution, Art. VII, Sec. 1.
7 Id., Art. II, Sec. 4.

302


and connecting the islands of the archipelago, regardless of their
breadth and dimensions.8

To carry out this important duty, the President is equipped with
authority over the Armed Forces of the Philippines (AFP),9 which is
the protector of the people and the state. The AFP’s role is to secure
the sovereignty of the State and the integrity of the national
territory.10 In addition, the Executive is constitutionally empowered
to maintain peace and order; protect life, liberty, and property; and
promote the general welfare.11 In recognition of these powers,
Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal
threats12 and, in the same vein, ensure that the country is adequately
prepared for all national and local emergencies arising from natural
and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To
illustrate, the President may call out the AFP to prevent or suppress
instances of lawless violence, invasion or rebellion,14 but not
suspend the privilege of the writ of habeas corpus for a period
exceeding 60 days, or place the Philippines or any part thereof under
martial law exceeding that same span. In the exercise of these
powers, the President is also duty-bound to submit a report to
Congress, in person or in writing, within 48 hours from the
proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus; and
_______________
8 Id., Art. I.
10 Id.
12 Id., Art. VII, Sec. 18, in relation to Art. II, Secs. 3, 4 & 7; Executive Order No.
292 (Administrative Code of 1987), Book IV (Executive Branch), Title VIII (National
Defense), Secs. 1, 15, 26 & 33 [hereinafter Administrative Code of 1987].
13 Administrative Code of 1987, Book IV (Executive Branch), Title XII (Local
Government), Sec. 3(5).
14 Constitution, Art. VII, Sec. 18.

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VOL. 779, JANUARY 12, 2016 303


Congress may in turn revoke the proclamation or suspension.
The same provision provides for the Supreme Court’s review of the
factual basis for the proclamation or suspension, as well as the
promulgation of the decision within 30 days from filing.

C. The power and duty to
conduct foreign relations

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

The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to
the nation especially in times of war. It can only be entrusted
to that department of government which can act on the basis
of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information
about foreign countries for
_______________
15 Id., Art. VII, Sec. 1, in relation to Administrative Code of 1987, Book IV

(Executive Branch), Title I (Foreign Affairs), Secs. 3(1) and 20; Akbayan Citizens
Action Party (“AKBAYAN”) v. Aquino, 580 Phil. 422; 558 SCRA 468 (2008);
Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303; 462 SCRA 622
(2005); People’s Movement for Press Freedom v. Manglapus, G.R. No. 84642, 13
September 1988 (unreported) (citing United States v. Curtiss-Wright Export Corp.,
299 U.S. 304 [1936]); Bernas, Joaquin, Foreign Relations in Constitutional Law, p.
101 (1995); Cortes, Irene R., the Philippine Presidency: A Study of Executive Power,
p. 187 (1966); Sinco, Vicente G., Philippine Political Law: Principles and Concepts,
p. 297 (10th ed., 1954).
16 See 1933 Montevideo Convention on the Rights and Duties of States, Art. 1,
165 LNTS 19; Crawford, James, The Creation of States in International Law, p. 61
(2nd ed. 2007).

304


our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion
in the conduct of foreign affairs. The regularity, nay, validity
of his actions are adjudged under less stringent standards, lest
their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with
equally undesirable consequences.17

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

the two major presiden-
tial functions and the
role of the Senate
_______________
17 Vinuya v. Romulo, 633 Phil. 538, 570; 619 SCRA 533, 561 (2010) (quoting the
Dissenting Opinion of then Assoc. Justice Reynato S. Puno in Secretary of Justice v.
Lantion, 379 Phil. 165, 233-234; 322 SCRA 160, 221-222 [2000]).
18 Constitution, Art. II, Sec. 7.

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Clearly, the power to defend the State and to act as its
representative in the international sphere inheres in the person of the
President. This power, however, does not crystallize into absolute
discretion to craft whatever instrument the Chief Executive so
desires. As previously mentioned, the Senate has a role in ensuring
that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain
the approval of two-thirds of its members.
Previously, treaties under the 1973 Constitution required
ratification by a majority of the Batasang Pambansa,19 except in
instances wherein the President “may enter into international treaties
or agreements as the national welfare and interest may require.”20
This left a large margin of discretion that the President could use to
bypass the Legislature altogether. This was a departure from the
1935 Constitution, which explicitly gave the President the power to
enter into treaties only with the concurrence of two-thirds of all the
Members of the Senate.21 The 1987 Constitution returned the
Senate’s power22 and, with it, the legislative’s traditional role in
foreign affairs.23
_______________
19 Id. (1973, as amended), Art. VIII, Sec. 14(1).

20 Id. (1973, as amended), Art. VIII, Sec. 16.
21 Id. (1935), Art. VII, Sec. 10(7).
22 Id., Art. VII, Sec. 21.
23 Quoth the Court: “For the role of the Senate in relation to treaties is essentially
legislative in character; 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 indis-

306


The responsibility of the President when it comes to treaties and
international agreements under the present Constitution is therefore
shared with the Senate. This shared role, petitioners claim, is
bypassed by EDCA.
II. Historical Antecedents of EDCA

A. U.S. takeover of Spanish
colonization and its mili-
tary bases, and the tran-
sition to Philippine inde-
pendence

The presence of the U.S. military forces in the country can be
traced to their pivotal victory in the 1898 Battle of Manila Bay
during the Spanish-American War.24 Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S. upon its
formal surrender a few months later.25 By 1899, the Americans had
consolidated a military administration in the archipelago.26
When it became clear that the American forces intended to
impose colonial control over the Philippine Islands, General Emilio
Aguinaldo immediately led the Filipinos into an all-out war against
the U.S.27 The Filipinos were ultimately defeated in the Philippine-
American War, which lasted until 1902 and
_______________
pensable toward our nation’s pursuit of political maturity and growth.” Bayan
(Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623; 342 SCRA 449 (2000).
24 Foreign Service Institute, Agreements on United States Military Facilities in
Philippine Military Bases, 1947-1985, p. ix (Pacifico A. Castro, revised ed., 1985).
25 Treaty of Peace Between the United States of America and the Kingdom of
Spain, 10 Dec. 1898, 30 US Stat. 1754, T.S. No. 343 (1898) (entered into force 11
Apr. 1899).
26 Foreign Service Institute, supra.
27 Id.

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VOL. 779, JANUARY 12, 2016 307


led to the downfall of the first Philippine Republic.28 The
Americans henceforth began to strengthen their foothold in the
country.29 They took over and expanded the former Spanish Naval
Base in Subic Bay, Zambales, and put up a cavalry post called Fort
Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine
Islands gained ground, the U.S. manifested the desire to maintain
military bases and armed forces in the country.31 The U.S. Congress
later enacted the Hare-Hawes-Cutting Act of 1933, which required
that the proposed constitution of an independent Philippines
recognize the right of the U.S. to maintain the latter’s armed forces
and military bases.32 The Philippine Legislature rejected that law, as
it also gave the U.S. the power to unilaterally designate any part of
Philippine territory as a permanent military or naval base of the U.S.
within two years from complete independence.33
_______________
28 Id.
29 Id.
30 Id.
31 Id.; Simbulan, Roland G., The Bases of our Insecurity: A Study of the US
Military Bases in the Philippines, p. 13 (2nd ed. 1985).
32 Hare-Hawes-Cutting Act, ch. 11, Sec. 2(1), 47 US Stat. 761 (1933). According
to the law: “Sec. 2. The constitution formulated and drafted shall be republican in
form, shall contain a bill of rights, and shall, either as a part thereof or in an ordinance
appended thereto, contain provisions to the effect that, pending the final and
complete withdrawal of the sovereignty of the United States over the Philippine
Islands — (1) The Philippine Islands recognizes the right of the United States x x x
to maintain military and other reservations and armed forces in the Philippines
x x x.”
33 Hare-Hawes-Cutting Act, Secs. 5 & 10. According to the law: “Sec. 5. All
the property and rights which may have been acquired in the Philippine Islands
by the United States under the treaties mentioned in the first section of this Act,
except such land or other property as has heretofore been designated by

308


The U.S. Legislature subsequently crafted another law called the
Tydings-McDuffie Act or the Philippine Independence Act of 1934.
Compared to the old Hare-Hawes-Cutting Act, the new law provided
for the surrender to the Commonwealth Government of “all military
and other reservations” of the U.S. government in the Philippines,
except “naval reservations and refueling stations.”34 Furthermore,
the law au-
_______________
the President of the United States for military and other reservations of the
Government of the United States x x x are hereby granted to the government of the
Commonwealth of the Philippine Islands when constituted. x x x x.” “Sec. 10. On the
4th day of July, immediately following the expiration of a period of ten years from
the date of the inauguration of the new government under the constitution
provided for in this Act, the President of the United States shall by proclamation
withdraw and surrender all right of possession, supervision, jurisdiction, control, or
sovereignty then existing and exercised by the United States in and over the
territory and people of the Philippine Islands, including all military and other
reservations of the Government of the United States in the Philippines (except such
land or property reserved under Section 5 as may be redesignated by the
President of the United States not later than two years after the date of such
proclamation).” See Foreign Service Institute, supra note 24; Simbulan, supra note
31.
34 Philippine Independence Act, US Pub. L. No. 73-127, Secs. 5 & 10, 48 US
Stat. 456 (1934) [hereinafter Philippine Independence Act]. According to the law:
“SEC. 10. (a) On the 4th day of July immediately following the expiration of a
period of ten years from the date of the inauguration of the new government
under the constitution provided for in this Act the President of the United States
shall by proclamation withdraw and surrender all right of possession, supervision,
jurisdiction, control, or sovereignty then existing and exercised by the United States
in and over the territory and people of the Philippine Islands, including all
military and other reservations of the Government of the United States in the
Philippines (except such naval reservations and fueling stations as are reserved
under Section 5) x x x.” See Foreign Service Institute, id.

309

thorized the U.S. President to enter into negotiations for the
adjustment and settlement of all questions relating to naval
reservations and fueling stations within two years after the
Philippines would have gained independence.35 Under the Tydings-
McDuffie Act, the U.S. President would proclaim the American
withdrawal and surrender of sovereignty over the islands 10 years
after the inauguration of the new government in the Philippines.36
This law eventually led to the promulgation of the 1935 Philippine
Constitution.
The original plan to surrender the military bases changed.37 At
the height of the Second World War, the Philippine and the U.S.
Legislatures each passed resolutions authorizing their respective
Presidents to negotiate the matter of retaining military bases in the
country after the planned withdrawal of the U.S.38 Subsequently, in
1946, the countries entered into the Treaty of General Relations, in
which the U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the
American military bases in the country.39 This treaty eventually led

_______________
35 Philippine Independence Act, Secs. 5 & 10; Foreign Service Institute, id.
36 Philippine Independence Act, Sec. 10.

37 Foreign Service Institute, supra note 24 at p. ix; Simbulan, supra note 31 at
pp. 13-14.
38 See Agreement Between the Republic of the Philippines and the United States
of America Concerning Military Bases, preamble, 14 Mar. 1947, 43 UNTS 271
(entered into force 26 Mar. 1947) [hereinafter 1947 Military Bases Agreement];
Foreign Service Institute, id.
39 Treaty of General Relations between the Republic of the Philippines and the
United States of America, Art. I, 4 Jul. 1946, 7 UNTS 3 (1946) (entered into force 22
Oct. 1946) [hereinafter 1946 Treaty of General Relations]. According to the treaty:
“The United States of America agrees to withdraw and surrender, and does hereby
withdraw and surrender, all rights of possession, supervision, jurisdiction, control
or sovereignty existing and exercised by the United States of America in and over the
territory and the

310


to the creation of the post-colonial legal regime on which would
hinge the continued presence of U.S. military forces until 1991: the
Military Bases Agreement (MBA) of 1947, the Military Assistance
Agreement of 1947, and the Mutual Defense Treaty (MDT) of
1951.40

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

Soon after the Philippines was granted independence, the two
countries entered into their first military arrangement pursuant to the
Treaty of General Relations — the 1947 MBA.41 The Senate
concurred on the premise of “mutuality of security interest,”42 which
provided for the presence and operation of 23 U.S. military bases in
the Philippines for 99 years or until the year 2046.43 The treaty also
obliged the Philippines to negotiate with the U.S. to allow the latter
to
_______________
people of the Philippine Islands, except the use of such bases, necessary
appurtenances to such bases, and the rights incident thereto, as the United States of
America, by agreement with the Republic of the Philippines may deem necessary
to retain for the mutual protection of the Republic of the Philippines and of the
United States of America. x x x.” The Philippine Senate concurred in this treaty (S.
Res. 11, 1st Cong. [1946]). See also: Nicolas v. Romulo, 598 Phil. 262; 578 SCRA
438 (2009).
40 Foreign Service Institute, supra note 24 at pp. x-xi; Bayan (Bagong Alyansang
Makabayan) v. Zamora, supra note 23.
41 1947 Military Bases Agreement.
42 S. Res. 29, 1st Cong. (1946); Philippine instrument of ratification was signed
by the President on 21 Jan. 1948 and the treaty entered into force on 26 Mar. 1947;
Nicolas v. Romulo, supra note 39.
43 Foreign Service Institute, supra note 24 at pp. x-xi; Simbulan, supra note 31 at
pp. 76-79.

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expand the existing bases or to acquire new ones as military
necessity might require.44
A number of significant amendments to the 1947 MBA were
made.45 With respect to its duration, the parties entered into the
Ramos-Rusk Agreement of 1966, which reduced the term of the
treaty from 99 years to a total of 44 years or until 1991.46
Concerning the number of U.S. military bases in the country, the
Bohlen-Serrano Memorandum of Agreement provided for the return
to the Philippines of 17 U.S. military bases covering a total area of
117,075 hectares.47 Twelve years later, the U.S. returned Sangley
Point in Cavite City through an exchange of notes.48 Then, through
the Romulo-Murphy Exchange of Notes of 1979, the parties agreed
to the recognition of Philippine sovereignty over Clark and Subic
Bases and the reduction of the areas that could be used by the U.S.
military.49 The agreement also provided for the mandatory review of
the treaty every five years.50 In 1983, the parties revised the 1947
MBA through the Romualdez-Armacost Agreement.51 The revision
pertained to the operational use of the military bases by the U.S.
government within the context of Philippine sovereignty,52 including
the need for prior consultation with the Philippine government on
the former’s use of the bases for military combat operations or the
establishment of long-range missiles.53
_______________
44 1947 Military Bases Agreement, Art. 1(3); Foreign Service Institute, id., at p.
xii; Simbulan, id., at pp. 78-79.
45 Foreign Service Institute, id., at pp. xii-xv.
46 Id., at p. xiii.
47 Id., at p. xii.
48 Id., at p. xiii.
49 Id.
50 Id.
51 Id., at pp. xiii-xiv.
52 Id.
53 Id.

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

under Republic of the Phil. Military Assistance Act (1946). According to Section 1
thereof: “The President of the Philippines is hereby authorized to enter into
agreement or agreements with the President of the United States, or with any of the
agencies or instrumentalities of the Government of the United States, regarding
military assistance to the armed forces of the Republic of the Philippines, in the
form of transfer of property and information, giving of technical advice and
lending of personnel to instruct and train them, pursuant to the provisions of
United States Public Act Numbered Four hundred and fifty-four, commonly called the
‘Republic of the Philippines Military Assistance Act,’ under the terms and
conditions provided in this Act.”
55 Agreement Between the Government of the Republic of the Philippines and
the Government of the United States of America on Military Assistance to the
Philippines, 45 UNTS 47 (entered into force 21 Mar. 1947) [hereinafter 1947 Military
Assistance Agreement].
56 Foreign Service Institute, supra note 24 at p. xi; Simbulan, supra note 31, at
pp. 79-89.
57 1947 Military Assistance Agreement, Sec. 6.
58 Exchange of Notes Constituting an Agreement Extending the Agreement
Between the Government of the Republic of the Philippines and the Government of
the United States of America on Military Assistance to the Philippines, 26 Jun. 1953,
213 UNTS 77 (entered into force 5 Jul. 1953) reproduced in Foreign Service Institute,
supra note 24 at pp. 197-203. See Mutual Logistics Support Agree-

313
To further strengthen their defense and security relationship,59 the

Philippines and the U.S. next entered into the MDT in 1951.
Concurred in by both the Philippine60 and the U.S.61 Senates, the
treaty has two main features: first, it allowed for mutual assistance in
maintaining and developing their individual and collective capacities
to resist an armed attack;62 and second, it provided for their mutual
self-defense in the event of an armed attack against the territory of
either party.63 The treaty was premised on their recognition that an
armed attack on either of them would equally be a threat to the
security of the other.64
_______________
ment (21 Nov. 2007). See generally: People v. Nazareno, 612 Phil. 753; 595
SCRA 438 (2009) (on the continued effectivity of the agreement).
59 See Mutual Defense Treaty between the Republic of the Philippines and the
United States of America, 30 Aug. 1951, 177 UNTS 133 (entered into force 27 Aug.
1952) [hereinafter 1951 MDT]. According to its preamble: “The Parties to this Treaty
x x x Desiring further to strengthen their present efforts to collective defense for the
preservation of peace and security pending the development of a more comprehensive
system of regional security in the Pacific Area x x x hereby agreed as follows[.]” See:
Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
60 S. Res. 84, 2nd Cong. (1952); Foreign Service Institute, supra note 24 at pp.
193-194; The Philippine instrument of ratification was signed by the President on 27
August 1952 and it entered into force on the same date upon the exchange of
ratification between the Parties (Philippines and U.S.), and was proclaimed by the
President by virtue of Proc. No. 341, S. 1952.
61 Nicolas v. Romulo, supra note 39 (citing U.S. Congressional Record, 82nd
Congress, Second Session, Vol. 98, Part 2, pp. 2594-2595).
62 1951 MDT, Art. II.
63 Id., Arts. IV-V.
64 Padua, Colonel Paterno C., Republic of the Philippines United States Defense
Cooperation: Opportunities and Challenges, A Filipino Perspective, p. 6 (2010).

314


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

In view of the impending expiration of the 1947 MBA in 1991,
the Philippines and the U.S. negotiated for a possible renewal of
their defense and security relationship.65 Termed as the Treaty of
Friendship, Cooperation and Security, the countries sought to recast
their military ties by providing a new framework for their defense
cooperation and the use of Philippine installations.66 One of the
proposed provisions included an arrangement in which U.S. forces
would be granted the use of certain installations within the
Philippine naval base in Subic.67 On 16 September 1991, the Senate
rejected the proposed treaty.68
The consequent expiration of the 194 7 MBA and the resulting
paucity of any formal agreement dealing with the treatment of U.S.
personnel in the Philippines led to the suspension in 1995 of large-
scale joint military exercises.69 In the meantime, the respective
governments of the two countries
_______________
65 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23; People’s

Movement for Press Freedom v. Manglapus, supra note 15.
66 See Treaty of Friendship, Cooperation and Security Between the Government
of the Republic of the Philippines and the Government of the United States of
America, 27 Aug. 1991 (rejected by the Senate on 16 Sept. 1991).
67 Id., Art. VII; Supplementary Agreement Two to the Treaty of Friendship,
Cooperation and Security, Arts. I & II(9).
68 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
69 Id.; Joint Report of the Committee on Foreign Relations and the Committee on
National Defense and Security reproduced in Senate of the Philippines, The Visiting
Forces Agreement: The Senate Decision, p. 206 (1999); Lim v. Executive Secretary,
430 Phil. 555; 380 SCRA 739 (2002).

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agreed70 to hold joint exercises at a substantially reduced level.71
The military arrangements between them were revived in 1999 when
they concluded the first Visiting Forces Agreement (VFA).72
As a “reaffirm[ation] [of the] obligations under the MDT,”73 the
VFA has laid down the regulatory mechanism for the treatment of
U.S. military and civilian personnel visiting the country.74 It
contains provisions on the entry and departure of U.S. personnel; the
purpose, extent, and limitations of their activities; criminal and
disciplinary jurisdiction; the waiver of
_______________
70 Agreement regarding the status of U.S. military and civilian personnel,

Exchange of notes between the DFA and the U.S. Embassy in Manila on Apr. 2, and
June 11 and 21, 1993, Hein’s No. KAV 3594 (entered into force 21 June 1993)
[hereinafter Status of Forces Agreement of 1993]. The agreement was extended on 19
September 1994; on 28 April 1995 (See Hein’s No. KAV 4245); and 8 December
1995 (See Hein’s No. KAV 4493). See also Mason, R. Chuck, Status of Forces
Agreement (Sofa): What Is It, and How Has It Been Utilized?, p. 14 (2012).
71 Joint Report of the Committee on Foreign Relations and the Committee on
National Defense and Security reproduced in Senate of the Philippines, supra note
69; Lim v. Executive Secretary, supra note 69; Bayan (Bagong Alyansang
Makabayan) v. Zamora, supra note 23.
72 Agreement Between the Government of the Republic of the Philippines and
the Government of the United States of America Regarding the Treatment of United
States Armed Forces Visiting the Philippines, Phil.-U.S., 10 Feb. 1998, TIAS No.
12931 (entered into force 1 Jun. 1999) [hereinafter VFA I], reproduced in Senate of
the Philippines, id., at pp. 257-266 (1999); Lim v. Executive Secretary, id.
73 VFA I, preamble. See: Lim v. Executive Secretary, id. In Lim, we explained
that “It is the VFA which gives continued relevance to the MDT despite the passage
of years. Its primary goal is to facilitate the promotion of optimal cooperation
between American and Philippine military forces in the event of an attack by a
common foe.”
74 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23 at p. 637; p.
469.

316


certain claims; the importation and exportation of equipment,
materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels,
and aircraft into and within the country.75 The Philippines and the
U.S. also entered into a second counterpart agreement (VFA II),
which in turn regulated the treatment of Philippine military and
civilian personnel visiting the U.S.76 The Philippine Senate
concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel
started arriving in Mindanao to take part in joint military exercises
with their Filipino counterparts.78 Called Balikatan, these exercises
involved trainings aimed at simulating joint military maneuvers
pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the
Mutual Logistics Support Agreement to “further the interoperability,
readiness, and effectiveness of their respective military forces”80 in
accordance with the MDT, the Military
_______________
75 VFA I; Lim v. Executive Secretary, supra note 69.

76 Agreement between the Government of the United States of America and the
Government of the Republic of the Philippines Regarding the Treatment of Republic
of the Philippines Personnel Visiting the United States of America, Phil.-U.S., 9 Oct.
1998, TIAS No. 12931 [hereinafter VFA II].
77 Senate Resolution No. 18, 27 May 1999 reproduced in Senate of the
Philippines, supra note 69 at pp. 185-190; Bayan (Bagong Alyansang Makabayan) v.
Zamora, supra note 23.
78 Lim v. Executive Secretary, supra note 69.
79 Id.
80 Mutual Logistics Support Agreement Between the Department of Defense of
the United States of America and the Department of National Defense of the Republic
of the Philippines, Preamble, 21 Nov. 2002 [hereinafter 2002 MLSA]. According to
the preamble thereof, the parties “have resolved to conclude” the agreement in light
of their “desir[e] to further the interoperability, readiness, and effectiveness of their
respective military forces through increased logistic cooperation in accordance with
the RP-US Mutual Defense

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Assistance Agreement of 1953, and the VFA.81 The new
agreement outlined the basic terms, conditions, and procedures for
facilitating the reciprocal provision of logistics support, supplies,
and services between the military forces of the two countries.82 The
phrase “logistics support and services” includes billeting, operations
support, construction and use of temporary structures, and storage
services during an approved activity under the existing military
arrangements.83 Already extended twice, the agreement will last
until 2017.84

D. The Enhanced Defense
Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and
conduct activities within certain “Agreed Locations” in the country.
It was not transmitted to the Senate on the executive’s understanding
that to do so was no longer neces-
_______________
Treaty, RP-US Visiting Forces Agreement or the RP-US Military Assistance

Agreement.” Consequently, Article II of the agreement provides that: “[it] shall be
implemented, applied and interpreted by the Parties in accordance with the provisions
of the Mutual Defense Treaty, the Visiting Forces Agreement or the Military
Assistance Agreement and their respective constitutions, national laws and
regulations.”
81 2002 MLSA, Preamble.
82 Id., Art. I.
83 Id., Art. IV(1)(a); Padua, supra note 64 at pp. 1-2.
84 See Mutual Logistics Support Agreement Between the Department of Defense
of the United States of America and the Department of National Defense of the
Republic of the Philippines, Art. IX, 8 Nov. 2007 (applied provisionally on 8 Nov.
2007; entered into force 14 Jan. 2009) [hereinafter 2007 MLSA]; Extension of the
Mutual Logistics Support Agreement (RP-US-01) Between the Department of
Defense of the United States of America and the Department of National Defense of
the Republic of the Philippines (entered into force 6 Nov. 2012).

318


sary.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.
_______________
85 Memorandum of the OSG, pp. 8, 24 Rollo (G.R. No. 212426, Vol. I), pp. 438,
454.
86 See Note No. 1082 of the U.S. Embassy to the DFA dated 25 June 2014,
Annex B of the Memorandum of the OSG, Rollo (G.R. No. 212426, Vol. I), p. 477;
Memorandum of the OSG, p. 8, Rollo (G.R. No. 212426, Vol. I), p. 438.
87 Statement of Secretary Albert F. del Rosario on the signing of the PH-U.S.
EDCA, Department of Foreign Affairs (28 Apr. 2014) available at
<https://www.dfa.gov.ph/index.php/newsroom/dfa-releases/2694-statement-of-
secretary-albert-f-del-rosario-on-the-signing-of-the-philippines-us-enhanced-defense-
cooperation-agreement> (last visited 5 Nov. 2015); Frequently Asked Questions
(FAQ) on the Enhanced Defense Cooperation Agreement, Department of Foreign
Affairs (28 Apr. 2014) available at
<https://www.dfa.gov.ph/index.php/newsroom/dfa-releases/2693-frequently-asked-
questions-faqs-on-the-enhanced-defense-cooperation-agreement> (last visited 5 Nov.
2015).
88 EDCA; Memorandum of OSG, p. 3, Rollo (G.R. No. 212426, Vol. I), p. 433.
89 Instrument of Ratification, Annex of A of the Memorandum of OSG, Rollo, p.
476.
90 Oral Arguments, TSN, 25 November 2014, pp. 119-120.

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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.

_______________
91 Rollo (G.R. No. 212444), pp. 865-867.

92 According to the Resolution: “Be it further resolved that this resolution
expressing the strong sense of the Senate be formally submitted to the Supreme Court
through the Chief Justice.” Id., at p. 867.

320


IV. Discussion

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

Petitioners are hailing this Court’s power of judicial review in
order to strike down EDCA for violating the Constitution. They
stress that our fundamental law is explicit in prohibiting the presence
of foreign military forces in the country, except under a treaty
concurred in by the Senate. Before this Court may begin to analyze
the constitutionality or validity of an official act of a coequal branch
of government, however, petitioners must show that they have
satisfied all the essential requisites for judicial review.93
Distinguished from the general notion of judicial power, the
power of judicial review specially refers to both the authority and
the duty of this Court to determine whether a branch or an
instrumentality of government has acted beyond the scope of the
latter’s constitutional powers.94 As articulated in Section 1, Article
VIII of the Constitution, the power of judicial review involves the
power to resolve cases in which the questions concern the
constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regula-
_______________
93 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., 460 Phil. 830, 914; 415 SCRA 44, 133 (2003).
94 See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676
SCRA 579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No.
202202, 19 March 2013, 693 SCRA 574; Gutierrez v. House of Representatives
Committee on Justice, 658 Phil. 322; 643 SCRA 198 (2011); Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., id.;
Demetria v. Alba, 232 Phil. 222; 148 SCRA 208 (1987).

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tion.95 In Angara v. Electoral Commission, this Court
exhaustively discussed this “moderating power” as part of the
system of checks and balances under the Constitution. In our
fundamental law, the role of the Court is to determine whether a
branch of government has adhered to the specific restrictions and
limitations of the latter’s power:96

The separation of powers is a fundamental principle in our
system of government. It obtains not through express
provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its
own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government. x x x. And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts
void if violative of the Constitution.
x x x x

As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through
_______________
95 The Constitution provides: “SECTION 1. The judicial power shall be vested

in one Supreme Court and in such lower courts as may be established by law.
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.”
96 Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).

322


their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has
established a republican government intended to operate
and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations
and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the
course of government along constitutional channels, for
then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living
constitution. x x x. In our case, this moderating power is
granted, if not expressly, by clear implication from Section 2
of Article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope and extent
of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is
involved in what is termed “judicial supremacy” which
properly is the power of judicial review under the
Constitution. x x x x. (Emphases supplied)

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The power of judicial review has since been strengthened in the
1987 Constitution. The scope of that power has been extended to the
determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government,
an exercise of discretion has been attended with grave abuse.97 The
expansion of this power has made the political question doctrine “no
longer the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and legislative
actions from judicial inquiry or review.”98
This moderating power, however, must be exercised carefully
and only if it cannot be completely avoided. We stress that our
Constitution is so incisively designed that it identifies the spheres of
expertise within which the different branches of government shall
function and the questions of policy that they shall resolve.99 Since
the power of judicial review involves the delicate exercise of
examining the validity or constitutionality of an act of a coequal
branch of government, this Court must continually exercise restraint
to avoid
_______________
97 Gutierrez v. House of Representatives Committee on Justice, supra note 94;

Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., supra note 93; Tañada v. Angara, 338 Phil. 546; 272 SCRA 18 (1997);
Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809-810
(citing Llamas v. Orbos, 279 Phil. 920; 202 SCRA 844 [1991]; Bengzon, Jr. v. Senate
Blue Ribbon Committee, G.R. No. 89914, 20 November 1991, 203 SCRA 767;
Gonzales v. Macaraig, Jr., G.R. No. 87636, 19 November 1990, 191 SCRA 452;
Coseteng v. Mitra, Jr., G.R. No. 86649, 12 July 1990, 187 SCRA 377; Daza v.
Singson, 259 Phil. 980; 180 SCRA 496 [1989]; and I Record, Constitutional
Commission, pp. 434-436 [1986]).
98 Oposa v. Factoran, Jr., id., at p. 97.
99 Morfe v. Mutuc, 130 Phil. 415, 442; 22 SCRA 424, 442 (1968); Angara v.
Electoral Commission, supra note 96 at p. 178.

324


the risk of supplanting the wisdom of the constitutionally
appointed actor with that of its own.100
Even as we are left with no recourse but to bare our power to
check an act of a coequal branch of government — in this case the
executive — we must abide by the stringent requirements for the
exercise of that power under the Constitution. Demetria v. Alba101
and Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.,102 cite the “pillars” of the limitations
on the power of judicial review as enunciated in the concurring
opinion of U.S. Supreme Court Justice Brandeis in Ashwander v.
Tennessee Valley Authority.103 Francisco104 redressed these “pillars”
under the following categories:
1. That there be absolute necessity of deciding a case;

2. That rules of constitutional law shall be formulated
only as required by the facts of the case;
3. That judgment may not be sustained on some other
ground;
4. That there be actual injury sustained by the party by
reason of the operation of the statute;
5. That the parties are not in estoppel;
6. That the Court upholds the presumption of
constitutionality. (Emphases supplied)
_______________
100 See: Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., supra note 93; United States v. Raines, 362 U.S. 17
(1960); and Angara v. Electoral Commission, id.
101 Demetria v. Alba, supra note 94 at p. 226.
Manggagawang Pilipino, Inc., supra at pp. 922-923; p. 161.
103 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348 (1936).
Manggagawang Pilipino, Inc., supra at p. 923; p. 161.

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

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

The OSG maintains107 that there is no actual case or controversy
that exists, since the Senators have not been deprived of the
opportunity to invoke the privileges of the institution they are
representing. It contends that the nonparticipation of the Senators in
the present petitions only confirms that even they believe that EDCA
is a binding executive agreement that does not require their
concurrence.
It must be emphasized that the Senate has already expressed its
position through SR 105.108 Through the Resolution, the Senate has
taken a position contrary to that of the OSG. As the body tasked to
participate in foreign affairs by ratifying treaties, its belief that
EDCA infringes upon its constitutional role indicates that an actual
controversy — albeit brought to the Court by non-Senators, exists.
_______________
105 Id., at p. 922; p. 160.

106 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
646 Phil. 452, 471; 632 SCRA 146, 166-167 (2010); David v. Macapagal-Arroyo, 522
Phil. 705, 753; 489 SCRA 160, 213 (2006); Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc., id., at p. 892;p. 133; Angara v.
Electoral Commission, supra note 96 at p. 158.
107 Memorandum of OSG, p. 6; Rollo, p. 436.
108 Rollo (G.R. No. 212444), pp. 865-867.

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

[The] power of judicial review is limited to actual cases
and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented.
Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions of
wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is
_______________

supra note 106 at p. 479.
110 Information Technology Foundation of the Philippines v. Commission on
Elections, 499 Phil. 281, 304-305; 460 SCRA 291, 313 (2005) (citing Aetna Life
Insurance Co. v. Hayworth, 300 U.S. 227 [1937]); Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, id., at p. 480; David v. Macapagal-Arroyo,
supra note 106 at p. 753; p. 213; Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc., supra note 93 at pp. 879-880; p.
121; Angara v. Electoral Commission, supra note 96 at p. 158.
111 Id. (citing Aetna Life Insurance Co. v. Hayworth, id.; Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council, id.; Lozano v. Nograles, 607
Phil. 334, 340; 589 SCRA 354, 358 [2009]).
112 Angara v. Electoral Commission, supra note 96 at pp. 158-159.

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presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the
executive and legislative departments of the government.
(Emphases supplied)

We find that the matter before us involves an actual case or
controversy that is already ripe for adjudication. The Executive
Department has already sent an official confirmation to the U.S.
Embassy that “all internal requirements of the Philippines x x x have
already been complied with.”113 By this exchange of diplomatic
notes, the Executive Department effectively performed the last act
required under Article XII(1) of EDCA before the agreement entered
into force. Section 25, Article XVIII of the Constitution, is clear that
the presence of foreign military forces in the country shall only be
allowed by virtue of a treaty concurred in by the Senate. Hence, the
performance of an official act by the Executive Department that led
to the entry into force of an executive agreement was sufficient to
satisfy the actual case or controversy requirement.

2. While petitioners Saguisag
et al., do not have legal
standing, they nonetheless
raise issues involving mat-
ters of transcendental im-
portance.

The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental act have
the right of appearance to bring the matter to the
_______________
113 Memorandum of OSG, supra note 80. See also Note No. 1082, supra note 86.

328


court for adjudication.114 They must show that they have a
personal and substantial interest in the case, such that they have
sustained or are in immediate danger of sustaining, some direct
injury as a consequence of the enforcement of the challenged
governmental act.115 Here, “interest” in the question involved must
be material — an interest that is in issue and will be affected by the
official act — as distinguished from being merely incidental or
general.116 Clearly, it would be insufficient to show that the law or
any governmental act is invalid, and that petitioners stand to suffer
in some indefinite way.117 They must show that they have a
particular interest in bringing the suit, and that they have been or are
about to be denied some right or privilege to which they are lawfully
entitled, or that they are about to be subjected to some burden or
penalty by reason of the act complained of.118 The reason why those
who challenge the validity of a law or an international agreement are
required to allege the existence of a personal stake in the outcome of
the controversy is “to assure
_______________
114 Almario v. Executive Secretary, G.R. No. 189028, 16 July 2013, 701 SCRA
269, 302; Bayan Muna v. Romulo, 656 Phil. 246; 641 SCRA 244 (2011).
115 Funa v. Duque III, G.R. No. 191672, 25 November 2014, 742 SCRA 166;
Almario v. Executive Secretary, id.; Bayan Muna v. Romulo, id., at p. 265; p. 255;
Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23; Francisco v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., supra
note 93 at pp. 895-896; p. 136.
116 Bayan Muna v. Romulo, id., at p. 265; p. 254; Pimentel, Jr. v. Office of the
Executive Secretary, supra note 15; Joya v. Presidential Commission on Good
Government, G.R. No. 96541, 24 August 1993, 225 SCRA 568.
117 Funa v. Duque III, supra; Almario v. Executive Secretary, supra note 114 at
p. 302; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
supra note 106 at p. 472; p. 167; Francisco v. Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc., supra note 93 at pp. 895-896; p. 136.
id.

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the concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.”119
The present petitions cannot

qualify as citizens’, taxpayers’,
or legislators’ suits; the Senate
as a body has the requisite
standing, but considering that it
has not formally filed a plead-
ing to join the suit, as it merely
conveyed to the Supreme Court
its sense that EDCA needs the
Senate’s concurrence to be valid,
petitioners continue to suffer
from lack of standing.

In assailing the constitutionality of a governmental act,
petitioners suing as citizens may dodge the requirement of having to
establish a direct and personal interest if they show that the act
affects a public right.120 In arguing that they have legal standing,
they claim121 that the case they have filed is a concerned citizen’s
suit. But aside from general statements that the petitions involve the
protection of a public right, and that their constitutional rights as
citizens would be violated,
_______________
120 Id., at pp. 266-267; p. 256; Akbayan Citizens Action Party (“AKBAYAN”) v.
Aquino, supra note 15; Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng
mga Manggagawang Pilipino, Inc., id.; Tañada v. Tuvera, 220 Phil. 422; 136 SCRA
27 (1985).
121 Petition of Saguisag, et al., p. 20, Rollo (G.R. No. 212426, Vol. I), p. 22;
Memorandum of Saguisag, et al., p. 15, Rollo (G.R. No. 212426, Vol. II), p. 985;
Petition of Bayan, et al., p. 9, Rollo (G.R. No. 212444, Vol. I), p. 11; Memorandum of
Bayan, et al., pp. 19, 23, Rollo (G.R. No. 212444, Vol. I), pp. 583, 587.

330


they fail to make any specific assertion of a particular public right
that would be violated by the enforcement of EDCA. For their
failure to do so, the present petitions cannot be considered by the
Court as citizens’ suits that would justify a disregard of the
aforementioned requirements.

In claiming that they have legal standing as taxpayers,
petitioners122 aver that the implementation of EDCA would result in
the unlawful use of public funds. They emphasize that Article X(1)
refers to an appropriation of funds; and that the agreement entails a
waiver of the payment of taxes, fees, and rentals. During the oral
arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of
implementing the agreement.123 The OSG, on the other hand,
maintains that petitioners cannot sue as taxpayers.124 Respondent
explains that EDCA is neither meant to be a tax measure, nor is it
directed at the disbursement of public funds.
A taxpayer’s suit concerns a case in which the official act
complained of directly involves the illegal disbursement of public
funds derived from taxation.125 Here, those challenging the act must
specifically show that they have sufficient interest in preventing the
illegal expenditure of public money, and that they will sustain a
direct injury as a result of the en-
_______________
122 Petition of Saguisag, et al., p. 10, Rollo (G.R. No. 212426, Vol. I), p. 12;
Petition of Bayan, et al., pp. 9-10, Rollo (G.R. No. 212444, Vol. I), pp. 11-12;
Memorandum of Bayan, et al., pp. 19, 23, Rollo (G.R. No. 212444, Vol. I), pp. 583,
587.
123 Oral Arguments, TSN, 18 November 2014, pp. 19-20.
124 Consolidated Comment of the OSG, p. 4, Rollo (G.R. No. 212426, Vol. I), p.
241; Memorandum of OSG, p. 7, Rollo (G.R. No. 212426, Vol. I), p. 437.

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forcement of the assailed act.126 Applying that principle to this
case, they must establish that EDCA involves the exercise by
Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as
taxpayers’ suits. We emphasize that a taxpayers’ suit contemplates a
situation in which there is already an appropriation or a
disbursement of public funds.128 A reading of Article X(1) of EDCA
would show that there has been neither an appropriation nor an
authorization of disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the

availability of appropriated funds authorized for these
purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would
require the disbursement of public funds, the money must come
from appropriated funds that are specifically authorized for this
purpose. Under the agreement, before there can even be a
disbursement of public funds, there must first be a legislative action.
Until and unless the Legislature appropriates funds for EDCA,
or unless petitioners can pinpoint a specific item in the current
budget that allows expenditure under the agreement, we cannot
at this time rule that there is in fact an appropriation or a
disbursement of funds that would justify the filing of a
taxpayers’ suit.
_______________
126 Id., (citing Pascual v. Secretary of Public Works, 110 Phil. 331 [1960];
Maceda v. Macaraig, Jr., G.R. No. 88291, 31 May 1991, 197 SCRA 771; Lozada v.
Commission on Elections, 205 Phil. 283; 120 SCRA 337 [1983]; Dumlao v.
COMELEC, 184 Phil. 369; 95 SCRA 392 [1980]; Gonzales v. Marcos, 160 Phil. 637;
65 SCRA 624 [1975]).
127 Id., (citing Bugnay Construction and Development Corporation v. Laron, 257
Phil. 245; 176 SCRA 240 [1989]).
128 Lozano v. Nograles, supra note 111 at pp. 342-343; p. 361.

332


Petitioners Bayan, et al. also claim129 that their co-petitioners
who are party-list representatives have the standing to challenge the
act of the Executive Department, especially if it impairs the
constitutional prerogatives, powers, and privileges of their office.
While they admit that there is no incumbent Senator who has taken
part in the present petition, they nonetheless assert that they also
stand to sustain a derivative but substantial injury as legislators.
They argue that under the Constitution, legislative power is vested in
both the Senate and the House of Representatives; consequently, it is
the entire Legislative Department that has a voice in determining
whether or not the presence of foreign military should be allowed.
They maintain that as members of the Legislature, they have the
requisite personality to bring a suit, especially when a constitutional
issue is raised.
The OSG counters130 that petitioners do not have any legal
standing to file the suits concerning the lack of Senate concurrence
in EDCA. Respondent emphasizes that the power to concur in
treaties and international agreements is an “institutional prerogative”
granted by the Constitution to the Senate. Accordingly, the OSG
argues that in case of an allegation of impairment of that power, the
injured party would be the Senate as an institution or any of its
incumbent members, as it is the Senate’s constitutional function that
is allegedly being violated.
The legal standing of an institution of the Legislature or of any of
its Members has already been recognized by this Court in a number
of cases.131 What is in question here is the alleged
_______________
129 Petition of Bayan, et al., p. 10, Rollo (G.R. No. 212444, Vol. I), p. 12;
Memorandum of Bayan, et al., pp. 19-20, Rollo (G.R. No. 212444, Vol. I), pp. 583-
584.
130 Consolidated Comment of the OSG, pp. 3-4, Rollo (G.R. No. 212444, Vol. I),
pp. 240-241; Memorandum of the OSG, pp. 4-7, Rollo (G.R. No. 212444, Vol. I), pp.
434-437.
131 Pimentel, Jr. v. Office of the Executive Secretary, supra note 15; Bayan
(Bagong Alyansang Makabayan) v. Zamora, supra note 23; Philippine Constitution
Association v. Enriquez, G.R. Nos. 113105, 113174, 113766, 113888, 19 August
1994, 235 SCRA 506; Gonzales v. Macaraig, supra note 97; Mabanag v. Lopez Vito,
78 Phil. 1 (1947).

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impairment of the constitutional duties and powers granted to, or
the impermissible intrusion upon the domain of, the Legislature or
an institution thereof.132 In the case of suits initiated by the
legislators themselves, this Court has recognized their standing to
question the validity of any official action that they claim infringes
the prerogatives, powers, and privileges vested by the Constitution
in their office.133 As aptly explained by Justice Perfecto in Mabanag
v. Lopez Vito:134

Being members of Congress, they are even duty bound to
see that the latter act within the bounds of the Constitution
which, as representatives of the people, they should uphold,
unless they are to commit a flagrant betrayal of public trust.
They are representatives of the sovereign people and it is
their sacred duty to see to it that the fundamental law
embodying the will of the sovereign people is not trampled
upon. (Emphases supplied)

We emphasize that in a legislators’ suit, those Members of
Congress who are challenging the official act have standing only to
the extent that the alleged violation impinges on their right to
participate in the exercise of the powers of the institution of which
they are members.135 Legislators have the standing “to maintain
inviolate the prerogatives, powers, and privileges vested by the
Constitution in their office and are allowed to sue to question the
validity of any official action,
_______________
132 Philippine Constitution Association v. Enriquez, id.

133 Pimentel, Jr. v. Office of the Executive Secretary, supra note 15; Philippine
Constitution Association v. Enriquez, id.
135 Pimentel, Jr. v. Office of the Executive Secretary, supra note 15; Bayan
(Bagong Alyansang Makabayan) v. Zamora, supra note 23; Philippine Constitution
Association v. Enriquez, supra note 131.

334


which they claim infringes their prerogatives as legislators.”136
As legislators, they must clearly show that there was a direct injury
to their persons or the institution to which they belong.137
As correctly argued by respondent, the power to concur in a
treaty or an international agreement is an institutional prerogative
granted by the Constitution to the Senate, not to the entire
Legislature. In Pimentel, Jr. v. Office of the Executive Secretary, this
Court did not recognize the standing of one of the petitioners therein
who was a member of the House of Representatives. The petition in
that case sought to compel the transmission to the Senate for
concurrence of the signed text of the Statute of the International
Criminal Court. Since that petition invoked the power of the Senate
to grant or withhold its concurrence in a treaty entered into by the
Executive Department, only then incumbent Senator Pimentel was
allowed to assert that authority of the Senate of which he was a
member.
Therefore, none of the initial petitioners in the present
controversy has the standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review
the act of the Executive for the following reasons.
In any case, petitioners raise

issues involving matters of
transcendental importance.

Petitioners138 argue that the Court may set aside procedural
technicalities, as the present petition tackles issues that
_______________
136 Pimentel, Jr. v. Office of the Executive Secretary, id.

138 Petition of Saguisag, et al., pp. 21-22, Rollo (G.R. No. 212426, Vol. I), pp.
23-24; Memorandum of Saguisag, et al., pp. 15-17, Rollo (G.R. No. 212426, Vol. II),
pp. 985-987; Petition of Bayan, et al., p. 6, Rollo (G.R. No. 212444, Vol. I), p. 8;
Memorandum of Bayan, et al., pp. 19, 23, Rollo (G.R. No. 212444, Vol. I), pp. 583,
587.

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are of transcendental importance. They point out that the matter
before us is about the proper exercise of the Executive Department’s
power to enter into international agreements in relation to that of the
Senate to concur in those agreements. They also assert that EDCA
would cause grave injustice, as well as irreparable violation of the
Constitution and of the Filipino people’s rights.
The OSG, on the other hand, insists139 that petitioners cannot
raise the mere fact that the present petitions involve matters of
transcendental importance in order to cure their inability to comply
with the constitutional requirement of standing. Respondent bewails
the overuse of “transcendental importance” as an exception to the
traditional requirements of constitutional litigation. It stresses that
one of the purposes of these requirements is to protect the Supreme
Court from unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal
stance towards the requirement of legal standing, especially when
paramount interest is involved. Indeed, when those who challenge
the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound
discretion and take cognizance of the suit.
_______________
139 Consolidated Comment of the OSG, pp. 4-5, Rollo (G.R. No. 212444, Vol. I),
pp. 241-242; Memorandum of the OSG, pp. 7-8, Rollo (G.R. No. 212444, Vol. I), pp.
437-438.
140 Bayan Muna v. Romulo, supra note 114 at p. 265; p. 255 (citing Constantino,
Jr. v. Cuisia, 509 Phil. 486; 472 SCRA 505 [2005]; Agan, Jr. v. Philippine
International Air Terminals Co., Inc., 450 Phil. 744; 402 SCRA 612 [2003]; Del Mar
v. Philippine Amusement and Gaming Corporation, 400 Phil. 307; 346 SCRA 485
[2000]; Tatad v. Garcia, Jr., 313 Phil. 296; 243 SCRA 436 [1995]; Kilosbayan,
Incorporated v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110);
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618; 338 SCRA 81 (2000).

336


It may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a law or
any other government act.
While this Court has yet to thoroughly delineate the outer limits
of this doctrine, we emphasize that not every other case, however
strong public interest may be, can qualify as an issue of
transcendental importance. Before it can be impelled to brush aside
the essential requisites for exercising its power of judicial review, it
must at the very least consider a number of factors: (1) the character
of the funds or other assets involved in the case; (2) the presence of
a clear case of disregard of a constitutional or statutory prohibition
by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party that has a more
direct and specific interest in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties,
together with the oral arguments, shows that petitioners have
presented serious constitutional issues that provide ample
justification for the Court to set aside the rule on standing. The
transcendental importance of the issues presented here is rooted in
the Constitution itself. Section 25, Article XVIII thereof, cannot be
any clearer: there is a much stricter mechanism required before
foreign military troops, facilities, or bases may be allowed in the
country. The DFA has already confirmed to the U.S. Embassy that
“all internal requirements of the Philippines x x x have already been
complied with.”142 It behooves the Court in this instance to take a
liberal stance towards the rule on standing and to determine
_______________
141 Kilosbayan, Incorporated v. Guingona, Jr. [Con. Op., J. Feliciano], id., at pp.
155-156 (cited in Magallona v. Ermita, 671 Phil. 243; 655 SCRA 476 [2011]);
Paguia v. Office of the President, 635 Phil. 568; 621 SCRA 600 [2010]; Francisco, Jr.
v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.,
supra note 93 at p. 899; p. 139).
142 Memorandum of OSG, supra note 80. See also Note No. 1082, supra note 86.

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forthwith whether there was grave abuse of discretion on the part
of the Executive Department.
We therefore rule that this case is a proper subject for
judicial review.
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or facilities.
C. Whether the provisions under EDCA are consistent with the
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 de-
fend the State, for which
purpose he may use that
power in the conduct of
foreign relations.

Historically, the Philippines has mirrored the division of powers
in the U.S. government. When the Philippine government was still
an agency of the Congress of the U.S., it was as an agent entrusted
with powers categorized as executive, legislative, and judicial, and
divided among these three great branches.143 By this division, the
law implied that the divided powers cannot be exercised except by
the department given the power.144
This divide continued throughout the different versions of the
Philippine Constitution and specifically vested the supreme
executive power in the Governor-General of the Philip-
_______________
143 Government of the Philippine Islands v. Springer, 50 Phil. 259 (1927).

144 Id.

338


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

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

obligation imposed on the President, and not a separate grant of
power.148 Section 17, Article VII of the Constitution, expresses this
duty in no uncertain terms and includes it in the provision regarding
the President’s power of control over the executive department, viz.:

The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.

The equivalent provisions in the next preceding Constitution did
not explicitly require this oath from the President. In the 1973
Constitution, for instance, the provision simply gives the President
control over the ministries.149 A similar lan-
_______________
145 Id.
146 Constitution, Art. VII, Sec. 5; Constitution (1973, as amended), Art. VII, Sec.
7; Constitution (1935, as amended), Art. VII, Sec. 7.
147 Id.
148 Almario v. Executive Secretary, supra note 114.
149 Constitution (1973, as amended), Art. VII, Sec. 10: “The President shall have
control of the ministries.”

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guage, not in the form of the President’s oath, was present in the
1935 Constitution, particularly in the enumeration of executive
functions.150 By 1987, executive power was codified not only in the
Constitution, but also in the Administrative Code:151

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

Hence, the duty to faithfully execute the laws of the land is
inherent in executive power and is intimately related to the other
executive functions. These functions include the faithful execution
of the law in autonomous regions;152 the right to prosecute
crimes;153 the implementation of transportation projects;154 the duty
to ensure compliance with treaties, executive agreements and
executive orders;155 the authority to deport undesirable aliens;156 the
conferment of national awards under the President’s jurisdiction;157
and the overall administration and control of the executive
department.158
_______________
150 Constitution (1935, as amended), Art. VII, Sec. 10(1): “The President shall
have control of all executive departments, bureaus or offices, exercise general
supervision over all local governments as may be provided by law, and take care that
the laws be faithfully executed.”
151 Administrative Code of 1987, Book III, Title I, Sec. 1.
152 Constitution, Art. X, Sec. 16: “The President shall exercise general
supervision over autonomous regions to ensure that the laws are faithfully executed.”
153 Ilusorio v. Ilusorio, 564 Phil. 746; 540 SCRA 182 (2007); Gonzalez v.
Hongkong & Shanghai Banking Corp., 562 Phil. 841; 537 SCRA 255 (2007).
154 Metropolitan Manila Development Authority v. Viron Transportation Co.,
Inc., 557 Phil. 121; 530 SCRA 341 (2007).
155 La Perla Cigar & Cigarette Factory v. Capapas, 139 Phil. 451; 28 SCRA
1085 (1969).
156 In re: R. McCulloch Dick, 38 Phil. 211 (1918).
157 Almario v. Executive Secretary, supra note 114.
158 Administrative Code of 1987, Book IV, Sec. 38.

340


These obligations are as broad as they sound, for a President
cannot function with crippled hands, but must be capable of securing
the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot,
for instance, limit or take over the President’s power to adopt
implementing rules and regulations for a law it has enacted.159
More important, this mandate is self-executory by virtue of its
being inherently executive in nature.160 As Justice Antonio T. Carpio
previously wrote,161

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

The import of this characteristic is that the manner of the
President’s execution of the law, even if not expressly granted by
the law, is justified by necessity and limited only by law, since the
President must “take necessary and proper steps to carry into
execution the law.”162 Justice George Malcolm states this principle
in a grand manner:163

The executive should be clothed with sufficient power to
administer efficiently the affairs of state. He should have
complete control of the instrumentalities
_______________
159 Concurring Opinion of J. Carpio, Abakada Guro Party-List v. Purisima, 584

Phil. 246; 562 SCRA 251 (2008).
160 Id.
161 Id., at p. 297; p. 304.
162 Philippine Constitution Association v. Enriquez, supra note 131.
163 Government of the Philippine Islands v. Springer, supra note 143.

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through whom his responsibility is discharged. It is still
true, as said by Hamilton, that “A feeble executive implies a
feeble execution of the government. A feeble execution is but
another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be in practice a
bad government.” The mistakes of State governments need
not be repeated here.
x x x x
Every other consideration to one side, this remains certain
— The Congress of the United States clearly intended that the
Governor General’s power should be commensurate with his
responsibility. The Congress never intended that the
Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but
shorn of the power to do so. The interests of the Philippines
will be best served by strict adherence to the basic principles
of constitutional government.

In light of this constitutional duty, it is the President’s prerogative
to do whatever is legal and necessary for Philippine defense
interests. It is no coincidence that the constitutional provision on the
faithful execution clause was followed by that on the President’s
commander-in-chief powers,164 which are specifically granted
during extraordinary events of lawless violence, invasion, or
rebellion. And this duty of defending the country is unceasing, even
in times when there is no state of lawless violence, invasion, or
rebellion. At such times, the President has full powers to ensure the
faithful execution of the laws.
It would therefore be remiss for the President and repugnant to
the faithful-execution clause of the Constitution to do nothing when
the call of the moment requires increasing the military’s defensive
capabilities, which could include forging alliances with states that
hold a common interest with the Philippines or bringing an
international suit against an offending state.
_______________
164 See Constitution, Art. VII, Secs. 17 & 18.

342


The context drawn in the analysis above has been termed by
Justice Arturo D. Brion’s Dissenting Opinion as the beginning of a
“patent misconception.”165 His dissent argues that this approach
taken in analyzing the President’s role as executor of the laws is
preceded by the duty to preserve and defend the Constitution, which
was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly
failed to appreciate the nuances of the analysis, if read holistically
and in context. The concept that the President cannot function with
crippled hands and therefore can disregard the need for Senate
concurrence in treaties167 was never expressed or implied. Rather,
the appropriate reading of the preceding analysis shows that the
point being elucidated is the reality that the President’s duty to
execute the laws and protect the Philippines is inextricably
interwoven with his foreign affairs powers, such that he must resolve
issues imbued with both concerns to the full extent of his powers,
subject only to the limits supplied by law. In other words, apart from
an expressly mandated limit, or an implied limit by virtue of
incompatibility, the manner of execution by the President must be
given utmost deference. This approach is not different from that
taken by the Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the
President authority to bypass constitutional safeguards and limits. In
fact, it specifies what these limitations are, how these limitations are
triggered, how these limitations function, and what can be done
within the sphere of constitutional duties and limitations of the
President.
Justice Brion’s dissent likewise misinterprets the analysis
proffered when it claims that the foreign relations power of the
President should not be interpreted in isolation.168 The
_______________
165 Dissenting Opinion of Justice Arturo D. Brion, p. 556.

166 Id., at p. 557.
167 Id., at pp. 556-559.
168 Id., at pp. 559-560.

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analysis itself demonstrates how the foreign affairs function,
while mostly the President’s, is shared in several instances, namely
in Section 2 of Article II on the conduct of war; Sections 20 and 21
of Article VII on foreign loans, treaties, and international
agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial
review of executive acts; Sections 4 and 25 of Article XVIII on
treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or
facilities.
In fact, the analysis devotes a whole subheading to the
relationship between the two major presidential functions and the
role of the Senate in it.
This approach of giving utmost deference to presidential
initiatives in respect of foreign affairs is not novel to the Court. The
President’s act of treating EDCA as an executive agreement is not
the principal power being analyzed as the Dissenting Opinion seems
to suggest. Rather, the preliminary analysis is in reference to the
expansive power of foreign affairs. We have long treated this power
as something the Courts must not unduly restrict. As we stated
recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations
present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the authority
for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination
by the Executive Department via the instant petition for
certiorari.

344


In the seminal case of US v. Curtiss-Wright Export Corp.,
the US Supreme Court held that “[t]he President is the sole
organ of the nation in its external relations, and its sole
representative with foreign relations.”
It is quite apparent that if, in the maintenance of our
international relations, embarrassment — perhaps
serious embarrassment — is to be avoided and success
for our aims achieved, congressional legislation which
is to be made effective through negotiation and inquiry
within the international field must often accord to the
President a degree of discretion and freedom from
statutory restriction which would not be admissible
where domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and
especially is this true in time of war. He has his
confidential sources of information. He has his agents in
the form of diplomatic, consular and other officials....
This ruling has been incorporated in our jurisprudence
through Bayan v. Executive Secretary and Pimentel v.
Executive Secretary; its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Puno’s dissent in
Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of
complexities and consequences, sometimes with life
and death significance to the nation especially in times
of war. It can only be entrusted to that department of
government which can act on the basis of the best
available information and can decide with
decisiveness. . . It is also the President who possesses
the most comprehensive and the most confidential
information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access

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to ultra-sensitive military intelligence data. In fine,
the presidential role in foreign affairs is dominant
and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs.
The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an
international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment
and a plethora of other problems with equally
undesirable consequences.169 (Emphases supplied)

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

2. The plain meaning of the
Constitution prohibits the en-
try of foreign military bases,
troops or facilities, except by
way of a treaty concurred in
by the Senate — a clear limi-
tation on the President’s dual
role as defender of the State
and as sole authority in for-
eign 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
_______________
169 Vinuya v. Romulo, supra note 17.

346


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
United States of America concerning Military Bases,

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VOL. 779, JANUARY 12, 2016 347

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 unambiguous 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
_______________
170 Memorandum of Bayan, et al., pp. 29-32, Rollo (G.R. No. 212444), pp. 593-
596; Memorandum of Saguisag, et al., pp. 17-29, 35-37, Rollo (G.R. No. 212426,
Vol. II), pp. 987-999, 1005-1007.
171 The pertinent text of SR 105 is reproduced below:
WHEREAS, the treaty known as RP-US EDCA (Enhanced Defense Cooperation
Agreement) is at present subject of Supreme Court proceedings on the question of
whether this treaty is valid and effective, considering that the Senate has not
concurred with the treaty;
WHEREAS, the Office of the President argues that the document is not a treaty
but is instead an executive agreement that allegedly does not require Senate
concurrence;
WHEREAS, the only constitutional ground for the position taken by the Executive
is the mere inclusion of the term “executive agreement” in the Constitution which
provides: “All cases involving the constitutionality of an ... executive agree-

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VOL. 779, JANUARY 12, 2016 349

_______________
ment ...” (Article VIII, Section 4, paragraph 2) as one of items included in the list
of cases which the Supreme Court has power to decide;
WHEREAS, there is no other provision in the Constitution concerning a so-called
executive agreement, and there is no mention at all of its definition, its requirements,
the role of the Senate, or any other characteristic of, or protocol for, any such so-
called “executive agreement”;
WHEREAS, “executive agreement” is a term wandering alone in the Constitution,
bereft of provenance and an unidentified constitutional mystery;
WHEREAS, in stark contrast to the lone mention of the term “executive
agreement,” the Constitution provides categorically:
(a) “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” (Article VII,
Section 21);
(b) “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 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” (Article XVIII,
Section 25);
WHEREAS, on the one hand, the Constitution is clear and categorical that Senate
concurrence is absolutely necessary for the validity and effectivity of any treaty,
particularly any treaty that promotes for foreign military bases, troops and facilities,
such as the EDCA;
WHEREAS, under the rules of constitutional and statutory construction, the two
constitutional provisions on Senate concurrence are specific provisions, while the lone
constitutional provision merely mentioning an “executive agreement” is a general
provision, and therefore, the specific provisions on Senate concurrence prevail over
the general provision on “executive agreement”;

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VOL. 779, JANUARY 12, 2016 349


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.
_______________
WHEREAS, the Senate is aware of and obeys the ruling of the Supreme Court in
Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622 (2005);
WHEREAS, the ruling cited above does not apply to the EDCA case, because the
Senate makes no attempt to force the President of the Philippines to submit the EDCA
treaty for concurrence by the Senate, by this Resolution, the Senate merely takes a
definitive stand on the nonnegotiable power of the Senate to decide whether a treaty
will be valid and effective, depending on the Senate concurrence[;]
WHEREFORE, be it hereby resolved by the Senate that the RP-US EDCA treaty
requires Senate concurrence, in order to be valid and effective;
Be it further resolved, That this Resolution expressing the strong sense of the
Senate be formally submitted to the Supreme Court through the Chief Justice.

350


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
_______________
172 Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735 SCRA 102; Land
Bank of the Philippines v. Atlanta Industries, Inc., G.R. No. 193796, 2 July 2014, 729
SCRA 12; Roxas v. Ermita, G.R. No. 180030, June 10, 2014; Bayan Muna v. Romulo,
supra note 114; Vinuya v. Romulo, supra note 17; Nicolas v. Romulo, supra note 39;
Akbayan Citizens Action Party v. Aquino, supra note 15; Suplico v. NEDA, 580 Phil.
301; 558 SCRA 329 (2008); Neri v. Senate Committee on Accountability of Public
Officers and Investigations, 572 Phil. 554; 549 SCRA 77 (2008); Abaya v. Ebdane,
Jr., 544 Phil. 645; 515 SCRA 720 (2007); Senate of the Philippines v. Ermita, 522
Phil. 1; 488 SCRA 1 (2006); Pimentel, Jr. v. Office of the Executive Secretary, supra
note 15; Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note note 23;
Chavez v. Presidential Commission on Good Government, 360 Phil. 133; 299 SCRA
744 (1998).
173 Republic v. Quasha, 150-B Phil. 140; 46 SCRA 160 (1972); Adolfo v. Court
of First Instance of Zambales, 145 Phil. 264; 34 SCRA 166 (1970); Commissioner of
Internal Revenue v. Guerrero, 128 Phil. 197; 19 SCRA 205 (1967); Gonzales v.
Hechanova, 118 Phil. 1065; 9 SCRA 230 (1963); Commissioner of Customs v.
Eastern Sea Trading, 113 Phil. 333; 3 SCRA 351 (1961); USAFFE Veterans Ass’n.,
Inc. v. Treasurer of the Phil., 105 Phil. 1030 (1959); Uy Matiao & Co., Inc. v. City of
Cebu, 93 Phil. 300 (1953); Abbot Laboratories v. Agrava, 91 Phil. 328 (1952).

351
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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
_______________
174 Nicolas v. Romulo, supra note 39.

175 Chavez v. Judicial and Bar Council, supra note 94; Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., supra
note 93 (quoting J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil.
719; 31 SCRA 413 [1970], citing Baranda v. Gustilo, 248 Phil. 205; 165 SCRA 757
[1988]; Luz Farms v. Secretary of the Department of Agrarian Reform, 270 Phil. 151;
192 SCRA 51 [1990]; Ordillo v. Commission on Elections, 270 Phil. 183; 192 SCRA
100 [1990]).
176 Id.; Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412
Phil. 308; 359 SCRA 698 (2001) (citing J.M. Tuason & Co., Inc. v. Land Tenure
Administration, id.; Gold Creek Mining Corp. v. Rodriguez, 66 Phil. 259, 264 [1938];
Ruben C. Agpalo, Statutory Construction, p. 311 [1990]).

352


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)
_______________
177 Id.; Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., supra note 93 (quoting J.M. Tuason & Co., Inc. v.
Land Tenure Administration, id.; citing Baranda v. Gustila, supra note 175 at p. 770;
Luz Farms v. Secretary of the Department of Agrarian Reform, supra note 175;
Ordillo v. Commission on Elections, supra note 175); Sarmiento III v. Mison, 240
Phil. 505; 156 SCRA 549 (1987); Gold Creek Mining Corp. v. Rodriguez, supra note
176.
Manggagawang Pilipino, Inc., id. (quoting J.M. Tuason & Co., Inc. v. Land Tenure
Administration, id.).

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VOL. 779, JANUARY 12, 2016 353


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 Labor
Party 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
_______________
179 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, supra

note 176.
180 Id. (quoting the Separate Opinion of Justice Mendoza in Civil Liberties Union
v. Executive Secretary, 272 Phil. 147; 194 SCRA 317 [1991]).
181 OED Online, available at <http://www.oed.com/view/Entry/5460>, accessed
on 28 October 2015; See also Merriam-Webster Online Dictionary, “allow,” available
at <http://www.merriamwebster.com/dictionary/allow>, accessed on 28 October
2015.
182 Black’s Law Dictionary (2nd ed).

354


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 com-
_______________
183 OED Online, available at <http://www.oed.com/view/Entry/92970?

rskey=JDaO1Y&result=6>, accessed on 28 October 2015; See also Merriam-Webster
Online Dictionary, available at <http://www.merriamwebster.com/dictionary/in>,
accessed on 28 October 2015.

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VOL. 779, JANUARY 12, 2016 355

bat 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
_______________
184 Supra note 69.

185 In the words of the Court: “The present Constitution contains key provisions
useful in determining the extent to which foreign military troops are allowed in
Philippine territory.” Lim v. Executive Secretary, id.
186 Memorandum of OSG, pp. 14-27, Rollo, pp. 444-457.
187 Dissenting Opinion of Justice Arturo D. Brion, p. 574.
188 Id., at p. 576.
189 Id.

356


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
_______________

Manggagawang Pilipino, Inc., supra note 93 (quoting J.M. Tuason & Co., Inc. v.
Land Tenure Administration, supra note 175).

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VOL. 779, JANUARY 12, 2016 357


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 gener-
ally enter into executive
agreements subject to limi-
tations defined by the Con-
stitution and may be in fur-
therance of a treaty already

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 fulfillment 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
_______________
191 See IV Record, Constitutional Commission, p. 759 (18 Sep. 1986): “By
inequalities, is the Commissioner referring to the one-sided provisions, the onerous
conditions of the RP-US Bases Agreement?” Nicolas v. Romulo, supra note 39 at p.
280; p. 458.
192 See Treaty of General Relations between the Republic of the Philippines and
the United States of America, October 22, 1946,
Art. 1 (1946); Philippine Independence Act (Tydings-McDuffie Act), Pub.L. 73-127,
48 Stat. 456, (24 March 1934), Secs. 5 and 10; Foreign Service Institute, supra note
24 at pp. ix-x.

358

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
_______________
193 Land Bank of the Philippines v. Atlanta Industries, Inc., supra note 172;
Bayan Muna v. Romulo, supra note 114; Nicolas v. Romulo, supra note 39; Neri v.
Senate Committee on Accountability of Public Officers and Investigations, supra note
172; Department of Budget and Management Procurement Service v. Kolonwel
Trading, 551 Phil. 1030; 524 SCRA 591 (2007); Abaya v. Ebdane, Jr., supra note
172; Republic v. Quasha, supra note 173; Adolfo v. Court of First Instance of
Zambales, supra note 173; Commissioner of Internal Revenue v. Guerrero, supra note
173; Gonzales v. Hechanova, supra note 173; Commissioner of Customs v. Eastern
Sea Trading, supra note 173; USAFFE Veterans Ass’n., Inc. v. Treasurer of the Phil.,
supra note 173; Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Abbot
Laboratories v. Agrava, supra note 173; II Record, Constitutional Commission, pp.
544-546 (31 July 1986); Cortes, supra note 15 at p. 190; Sinco, supra note 15 at pp.
303-305.
194 Constitution, Art. VIII (Judicial Department), Secs. 4(2) & 5(2)(a);
Constitution (1973, as amended), Art. X (The Judiciary), Secs. 2(2) & 5(2)(a), Art.
XVII (Transitory Provisions), Sec. 12; Constitution (1935), Ordinance Appended to
the Constitution or “Parity Amendment.”
195 Republic Act No. 9184 (Government Procurement Reform Act) (2003), Sec.
4; Administrative Code of 1987, Book II, Sec. 18(2)(a); Presidential Decree No.
1464, as amended (Tariff and Customs Code of 1978), Sec. 402(f); Republic Act No.
1789 (Reparations Law) (1957), Sec. 18; Commonwealth Act No. 733 (Acceptance of

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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
_______________
Executive Agreement Under Title IV of [United States] Public Law 371-79th

Congress) (1946).
196 Neri v. Senate Committee on Accountability of Public Officers and
Investigations, supra note 172; Republic v. Quasha, supra note 173; Commissioner of
Internal Revenue v. Guerrero, supra note 173; Gonzales v. Hechanova, supra note
173; Commissioner of Customs v. Eastern Sea Trading, supra note 173; USAFFE
Veterans Ass’n., Inc. v. Treasurer of the Phil., supra note 173; Abbot Laboratories v.
Agrava, supra note 173.
197 II Record, Constitutional Commission, supra note 193.
198 Bayan Muna v. Romulo, supra note 114. See also Sinco,supra note 15.
199 See generally: Nicolas v. Romulo, supra note 39; Lim v. Executive Secretary,
supra note 69.
200 See: Akbayan Citizens Action Party v. Aquino, supra note 15; Pimentel, Jr. v.
Office of the Executive Secretary, supra note 15. See Constitution, Art. VII, Sec. 1, in
relation to Administrative Code of 1987, Book IV (Executive Branch), Title I
(Foreign Affairs), Secs. 3(1) and 20; Sinco, supra note 15 at p. 297.
201 Pimentel, Jr. v. Office of the Executive Secretary, id. See Constitution, Art.
VII, Sec. 1, in relation to Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Secs. 3(1) and 20; Sinco, id., at p. 298.

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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
_______________
202 See: Constitution, Art. VII, Sec. 1, in relation to Administrative Code of

1987, Book III (Office of the President), Title I (Powers of the President), Sec. 1 and
Book IV (Executive Branch), Title I (Foreign Affairs), Secs. 3(1) and 20 and Title III
(Justice), Sec. 35(10); Pimentel, Jr. v. Office of the Executive Secretary, supra note 15
(on ratification of treaties); Vinuya v. Executive Secretary, supra note 17 (on
espousing claims against foreign governments); Abaya v. Ebdane, Jr., supra note 172
(on contracting foreign loans); People’s Movement for Press Freedom v. Manglapus,
supra note 15 (on treaty negotiations with foreign states); Sinco, id., at p. 298.
203 See Sinco, id., at pp. 297-298.

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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

_______________
204 Commissioner of Customs v. Eastern Sea Trading, supra note 173.

205 Bayan Muna v. Romulo, supra note 114. See also Sinco, supra note 15.

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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.
x x x x
[T]he right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage.
From the earliest days of our history we have entered 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)
_______________

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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 pro-
_______________
207 II Record, Constitutional Commission, pp. 544-546 (31 July 1986). See also
Defensor-Santiago, Miriam, International Agreements in Constitutional Law: The
Suspended RP-China (ZTE) Loan Agreement, 53 Ateneo L.J. 537, 539 (2008).

364


ceeding 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

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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.

366

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.
x x x
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.
x x x

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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 aforequoted 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
_______________
208 Bayan Muna v. Romulo, supra note 114 at p. 261; p. 253; Gonzales v.
Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea Trading, supra
note 173; II Record, Constitutional Commission, pp. 544-546 (31 July 1986); Cortes,
supra note 15; Sinco, supra note 15.
209 See, e.g.: Bayan Muna v. Romulo, id. (on the transfer or surrender of US
nationals in the Philippines who may be sued before international tribunals); Nicolas
v. Romulo, supra note 39 (on agreement concerning the detention of a member of the
U.S. Armed Forces, who was accused of committing a crime in the Philippines);
Adolfo v. Court of First Instance of Zambales, supra note 173 (on exchange of notes
pursuant to the 1947 MBA); Treaty of General Relations Between the Republic of the
Philippines and the United States of America (1946).

368


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’être 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 modern, 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,
_______________
210 See, e.g.: Republic v. Quasha, supra note 173; Commissioner of Internal
Revenue v. Guerrero, supra note 173; Abbot Laboratories v. Agrava, supra note 173
(on the interpretation of the provision in the Philippine Patent Law of 1947
concerning the reciprocity measure on priority rights to be granted to U.S. nationals);
Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Republic Act No. 9 —
Authority of President to Enter into Agreement with US under Republic of the Phil.
Military Assistance Act (1946).
211 See, e.g.: Land Bank v. Atlanta Industries, Inc., supra note 172 (on foreign
loan agreement); Bayan Muna v. Romulo, supra note 114; Department of Budget &
Management Procurement Service v. Kolonwel Trading, supra note 193 (on foreign
loan agreement); Abaya v. Ebdane, Jr., supra note 172 (on foreign loan agreement);
Commissioner of Customs v. Eastern Sea Trading, supra note 173 (on foreign trade
and financial agreements); USAFFE Veterans Ass’n., Inc. v. Treasurer of the Phil.,
supra note 173 (on conversion of unspent fund as a foreign loan). But see on
limitations: Gonzales v. Hechanova, supra note 173.
212 See generally: Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note
23; Gautier, Philippe, 1969 Vienna Convention, Article 2 Use of Terms, in The
Vienna Conventions on the Law of Treaties: A Commentary, Vol. I, pp. 35-36 (Olivier
Corten & Pierre Klein eds., 2011).

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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
_______________
213 See generally: Bayan (Bagong Alyansang Makabayan) v. Zamora, id.;

Gautier, id., at p. 37 (quoting Customs régime between Germany and Austria,
Advisory Opinion, 1931 PCIJ, Ser. A/B no. 41, p. 47).
214 Gonzales v. Hechanova, supra note 173.
215 Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of First
Instance of Zambales, supra note 173).
216 See: Bayan Muna v. Romulo, id.

370


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 territory.221
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
Congress.222
_______________
217 Pharmaceutical and Health Care Association of the Philippines v. Duque III,
561 Phil. 386; 535 SCRA 265 (2007); Lim v. Executive Secretary, supra note 69;
Secretary of Justice v. Lantion, supra note 17; Philip Morris, Inc. v. Court of Appeals,
G.R. No. 91332, 16 July 1993, 224 SCRA 576.
218 See: Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of
First Instance of Zambales, supra note 173); Civil Code, Art. 7.
219 Id.; Nicolas v. Romulo, supra note 39; Gonzales v. Hechanova, supra note
173; Civil Code, Art. 7.
220 See Constitution, Art. VIII, Sec. 5(2); Civil Code, Art. 7.
222 Id., Art. VI, Sec. 28(2).

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c. The grant of any tax exemption, which must be pursuant
to a law concurred in by a majority of all the Members of
Congress.223
d. The contracting or guaranteeing, on behalf of the
Philippines, of foreign loans that must be previously
concurred in by the Monetary Board.224
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 ex-
ecutive 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.
_______________
223 Id., Art. VI, Sec. 28(4).

224 Id., Art. VII, Sec. 20.
225 Id., Art. XVIII, Sec. 25.

372


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
_______________
226 II Record, Constitutional Commission, p. 544 (31 July 1986).

227 Id., at p. 545.
228 Id.

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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 x x 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

374


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.
x x x x
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.
x x x x
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)

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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. Romulo, 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.
_______________
229 Sinco, supra note 15 at p. 297. See: Vinuya v. Romulo, supra note 17 (on
espousal of the claims of Philippine nationals against a foreign government);
Pimentel, Jr. v. Office of the Executive Secretary, supra note 15 (on ratification of
international agreements); Secretary of Justice v. Lantion, supra note 17 (on
temporarily withholding of the right to notice and hearing during the evaluation stage
of the extradition process); People’s Movement for Press Freedom v. Manglapus,
supra note 15 (on the imposition of secrecy in treaty negotiations with foreign
countries).
230 Vinuya v. Romulo, id.

376


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
_______________

232 Nicolas v. Romulo, supra note 39.

377
VOL. 779, JANUARY 12, 2016 377


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
_______________
233 Id., at p. 291; p. 468.

378


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

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

The starting point of our analysis is the rule that “an executive
agreement x x x may not be used to amend a treaty.”234 In Lim v.
Executive Secretary and in Nicolas v. Romulo, the Court approached
the question of the validity of executive agreements by comparing
them with the general framework and the specific provisions of the
treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was
scrutinized by studying “the framework of the treaty antecedents to
which the Philippines bound itself,”235 i.e., the MDT and the VFA.
The Court proceeded to examine the extent of the term “activities”
as contemplated in Articles 1236 and II237 of the VFA. It later on
found that the term “ac-
_______________
234 Bayan Muna v. Romulo, supra note 114 at p. 273; p. 263. See also: Nicolas v.
Romulo, id.; Adolfo v. Court of First Instance of Zambales, supra note 173; Abbot
Laboratories v. Agrava, supra note 173. Senate Resolution No. 18, dated 27 May
1999, which embodies the concurrence of the Senate in the VFA, stresses in its
preamble that “nothing in this Resolution or in the VFA shall be construed as
authorizing the President of the Philippines alone to bind the Philippines to any
amendment of any provision of the VFA.” (Emphases supplied)
235 Lim v. Executive Secretary, supra note 69 at p. 571; p. 752.
236 The provision states: “As used in this Agreement, ‘United States personnel’
means United States military and civilian per-

379
VOL. 779, JANUARY 12, 2016 379

tivities” was deliberately left undefined and ambiguous in order
to permit “a wide scope of undertakings subject only to the approval
of the Philippine government”238 and thereby allow the parties “a
certain leeway in negotiation.”239 The Court eventually ruled that the
Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It
studied the provisions of the VFA on custody and detention to
ascertain the validity of the Romulo-Kenney Agreement.240 It
eventually found that the two international agreements were not in
accord, since the Romulo-Kenney Agreement had stipulated that
U.S. military personnel shall be detained at the U.S. Embassy
Compound and guarded by U.S. military personnel, instead of by
Philippine authorities. According to the Court, the parties
“recognized the difference between
_______________
sonnel temporarily in the Philippines in connection with activities approved

by the Philippine Government. x x x.” (Emphases supplied)
237 The provision states: “It is the duty of United States personnel to respect the
laws of the Republic of the Philippines and to abstain from any activity inconsistent
with the spirit of this agreement, and, in particular, from any political activity in
the Philippines. The Government of the United States shall take all measures within
its authority to ensure that this is done.” (Emphases supplied)
238 Lim v. Executive Secretary, supra note 69 at p. 572; pp. 752-753.
239 Id., at p. 575; p. 755.
240 According to the agreement: “[H]e 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 the 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.”

380


custody during the trial and detention after conviction.”241
Pursuant to Article V(6) of the VFA, the custody of a U.S. military
personnel resides with U.S. military authorities during trial. Once
there is a finding of guilt, Article V(10) requires that the
confinement or detention be “by Philippine authorities.”
Justice Marvic M.V.F. Leonen’s Dissenting Opinion posits that
EDCA “substantially modifies or amends the VFA”242 and follows
with an enumeration of the differences between EDCA and the VFA.
While these arguments will be rebutted more fully further on, an
initial answer can already be given to each of the concerns raised by
his dissent.
The first difference emphasized is that EDCA does not only
regulate visits as the VFA does, but allows temporary stationing on a
rotational basis of U.S. military personnel and their contractors in
physical locations with permanent facilities and pre-positioned
military materiel.
This argument does not take into account that these permanent
facilities, while built by U.S. forces, are to be owned by the
Philippines once constructed.243 Even the VFA allowed construction
for the benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows
the prepositioning of military materiel, which can include various
types of warships, fighter planes, bombers, and vessels, as well as
land and amphibious vehicles and their corresponding
ammunition.244
However, the VFA clearly allows the same kind of equipment,
vehicles, vessels, and aircraft to be brought into the country. Articles
VII and VIII of the VFA contemplates that
_______________
241 Nicolas v. Romulo, supra note 39 at p. 287; p. 464.

242 Dissenting Opinion of Justice Marvic M.V.F. Leonen, p. 630.
243 EDCA, Art. V(1) and (4).
244 Dissenting Opinion of Justice Leonen, p. 631.

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VOL. 779, JANUARY 12, 2016 381


U.S. equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of the
U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by
or for U.S. forces in connection with activities under the VFA. These
provisions likewise provide for the waiver of the specific duties,
taxes, charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen’s dissent is
that the VFA contemplates the entry of troops for training exercises,
whereas EDCA allows the use of territory for launching military and
paramilitary operations conducted in other states.245 The dissent of
Justice Teresita J. Leonardo-De Castro also notes that VFA was
intended for non-combat activities only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of
military necessity or had a martial character, and were therefore not
contemplated by the VFA.246
This Court’s jurisprudence however established in no uncertain
terms that combat-related activities, as opposed to actual combat,
were allowed under the MDT and VFA, viz.:

Both the history and intent of the Mutual Defense Treaty
and the VFA support the conclusion that combat-related
activities as opposed to combat itself such as the one subject
of the instant petition, are indeed authorized.247
Hence, even if EDCA was borne of military necessity, it cannot

be said to have strayed from the intent of the VFA since EDCA’s
combat-related components are allowed under the treaty.
_______________
245 Id.
246 Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De
Castro, p. 528.

382


Moreover, both the VFA and EDCA are silent on what these
activities actually are. Both the VFA and EDCA deal with the
presence of U.S. forces within the Philippines, but make no mention
of being platforms for activity beyond Philippine territory. While it
may be that, as applied, military operations under either the VFA or
EDCA would be carried out in the future, the scope of judicial
review does not cover potential breaches of discretion but only
actual occurrences or blatantly illegal provisions. Hence, we cannot
invalidate EDCA on the basis of the potentially abusive use of its
provisions.
The fourth difference is that EDCA supposedly introduces a new
concept not contemplated in the VFA or the MDT: Agreed
Locations, Contractors, Prepositioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully
and individually in the latter analysis of EDCA’s provisions.
However, it must already be clarified that the terms and details used
by an implementing agreement need not be found in the mother
treaty. They must be sourced from the authority derived from the
treaty, but are not necessarily expressed word-for-word in the
mother treaty. This concern shall be further elucidated in this
Decision.
The fifth difference highlighted by the Dissenting Opinion is that
the VFA does not have provisions that may be construed as a
restriction on or modification of obligations found in existing
statues, including the jurisdiction of courts, local autonomy, and
taxation. Implied in this argument is that EDCA contains such
restrictions or modifications.249
This last argument cannot be accepted in view of the clear
provisions of EDCA. Both the VFA and EDCA ensure Philippine
jurisdiction in all instances contemplated by both agreements, with
the exception of those outlined by the VFA in
_______________
248 Dissenting Opinion of Justice Leonen, p. 631.

249 Id.

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VOL. 779, JANUARY 12, 2016 383


Articles III-VI. In the VFA, taxes are clearly waived whereas in
EDCA, taxes are assumed by the government as will be discussed
later on. This fact does not, therefore, produce a diminution of
jurisdiction on the part of the Philippines, but rather a recognition of
sovereignty and the rights that attend it, some of which may be
waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be
compared with those of the MDT and the VFA, which are the two
treaties from which EDCA allegedly draws its validity.
“Authorized presence” under

the VFA versus “authorized
activities” under EDCA: (1)
U.S. personnel and (2) U.S.
contractors.

The OSG argues250 that EDCA merely details existing policies
under the MDT and the VFA. It explains that EDCA articulates the
principle of defensive preparation embodied in Article II of the
MDT; and seeks to enhance the defensive, strategic, and
technological capabilities of both parties pursuant to the objective of
the treaty to strengthen those capabilities to prevent or resist a
possible armed attack. Respondent also points out that EDCA
simply implements Article I of the VFA, which already allows the
entry of U.S. troops and personnel into the country. Respondent
stresses this Court’s recognition in Lim v. Executive Secretary that
U.S. troops and personnel are authorized to conduct activities that
promote the goal of maintaining and developing their defense
capability.
_______________
250 Memorandum of OSG, pp. 14-27, Rollo (G.R. No. 212426), pp. 444-457.

384


Petitioners contest251 the assertion that the provisions of EDCA
merely implement the MDT. According to them, the treaty does not
specifically authorize the entry of U.S. troops in the country in order
to maintain and develop the individual and collective capacities of
both the Philippines and the U.S. to resist an armed attack. They
emphasize that the treaty was concluded at a time when there was as
yet no specific constitutional prohibition on the presence of foreign
military forces in the country.
Petitioners also challenge the argument that EDCA simply
implements the VFA. They assert that the agreement covers only
short-term or temporary visits of U.S. troops “from time to time” for
the specific purpose of combined military exercises with their
Filipino counterparts. They stress that, in contrast, U.S. troops are
allowed under EDCA to perform activities beyond combined
military exercises, such as those enumerated in Articles III(1) and
IV(4) thereof. Furthermore, there is some degree of permanence in
the presence of U.S. troops in the country, since the effectivity of
EDCA is continuous until terminated. They proceed to argue that
while troops have a “rotational” presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. mili-

tary and civilian per-
sonnel into Philippine
territory is already al-
lowed under the VFA.

We shall first deal with the recognition under EDCA of the
presence in the country of three distinct classes of individuals who
will be conducting different types of activities within the Agreed
Locations: (1) U.S. military personnel; (2) U.S. civilian
_______________
251 Memorandum of Saguisag, et al., pp. 22-23, 38-49, Rollo (G.R. No. 212426,
Vol. II), pp. 992-993, 1008-1019; Memorandum of Bayan, et al., pp. 35-41, Rollo
(G.R. No. 212444), pp. 599-605.

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VOL. 779, JANUARY 12, 2016 385


personnel; and (3) U.S. contractors. The agreement refers to them
as follows:
“United States personnel” means United States military and
civilian personnel temporarily in the territory of the Philippines
in connection with activities approved by the Philippines, as those
terms are defined in the VFA.252

“United States forces” means the entity comprising
United States personnel and all property, equipment, and
materiel of the United States Armed Forces present in the
territory of the Philippines.253
“United States contractors” means companies and
firms, and their employees, under contract or subcontract
to or on behalf of the United States Department of Defense.
United States contractors are not included as part of the
definition of United States personnel in this Agreement,
including within the context of the VFA.254
United States forces may contract for any materiel,
supplies, equipment, and services (including construction) to
be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or
person who provides such materiel, supplies, equipment, or
services. Such contracts shall be solicited, awarded, and
administered in accordance with the laws and regulations of
the United States.255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that
the agreement does not deal with the entry into the country of
U.S. personnel and contractors per se.
_______________
252 EDCA, Art. II(1).

253 Id., Art. II(2).
254 Id., Art. II(3).
255 Id., Art. VIII(1).

386


While Articles I(1)(b)256 and II(4)257 speak of “the right to access
and use” the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed entry into
Philippine territory, for which, unlike the VFA, EDCA has no
specific provision. Instead, Article II of the latter simply alludes to
the VFA in describing U.S. personnel, a term defined under Article I
of the treaty as follows:

As used in this Agreement, “United States personnel”
means United States military and civilian personnel
temporarily in the Philippines in connection with activities
approved by the Philippine Government. Within this
definition:
1. The term “military personnel” refers to military
members of the United States Army, Navy, Marine Corps,
Air Force, and Coast Guard.
2. The term “civilian personnel” refers to individuals who
are neither nationals of nor ordinarily resident in the
Philippines and who are employed by the United States
armed forces or

_______________
256 According to this provision: 1. This Agreement deepens defense cooperation

between the Parties and maintains and develops their individual and collective
capacities, in furtherance of Article II of the MDT, which states that ‘the Parties
separately and jointly by self-help and mutual aid will maintain and develop their
individual and collective capacity to resist armed attack,’ and within the context of
the VFA. This includes: x x x x (b) Authorizing access to Agreed Locations in the
territory of the Philippines by United States forces on a rotational basis, as mutually
determined by the Parties.
257 According to this provision: “Agreed Locations” means facilities and areas
that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this agreement. Such Agreed
Locations may be listed in an annex to be appended to this Agreement, and may be
further described in implementing arrangements.

387
VOL. 779, JANUARY 12, 2016 387

who are accompanying the United States armed forces,
such as employees of the American Red Cross and the
United Services Organization.258

Article II of EDCA must then be read with Article III of the
VFA, which provides for the entry accommodations to be accorded
to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate
the admission of United States personnel and their departure
from the Philippines in connection with activities covered by
this agreement.
2. United States military personnel shall be exempt
from passport and visa regulations upon entering and
departing the Philippines.
3. The following documents only, which shall be
required in respect of United States military personnel who
enter the Philippines; x x x x.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon demand,
valid passports upon entry and departure of the Philippines.
(Emphases supplied)
By virtue of Articles I and III of the VFA, the Philippines already
allows U.S. military and civilian personnel to be “temporarily in the
Philippines,” so long as their presence is “in connection with
activities approved by the Philippine Government.” The Philippines,
through Article III, even guarantees that it shall facilitate the
admission of U.S. personnel into the country and grant exemptions
from passport and visa regulations. The VFA does not even limit
their temporary presence to specific locations.
Based on the above provisions, the admission and presence of
U.S. military and civilian personnel in Philippine territory are
already allowed under the VFA, the
_______________
258 VFA I, Art. I.

388


treaty supposedly being implemented by EDCA. What EDCA
has effectively done, in fact, is merely provide the mechanism to
identify the locations in which U.S. personnel may perform allowed
activities pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the country.

b. EDCA does not provide t
he legal basis for ad-
mission of U.S. contrac-
tors into Philippine
territory; their entry
must be sourced from
extraneous Philippine
statutes and regula-
tions for the admission of
alien employees or
business persons.

Of the three aforementioned classes of individuals who will be
conducting certain activities within the Agreed Locations, we note
that only U.S. contractors are not explicitly mentioned in the VFA.
This does not mean, though, that the recognition of their presence
under EDCA is ipso facto an amendment of the treaty, and that there
must be Senate concurrence before they are allowed to enter the
country.
Nowhere in EDCA are U.S. contractors guaranteed immediate
admission into the Philippines. Articles III and IV, in fact, merely
grant them the right of access to, and the authority to conduct certain
activities within the Agreed Locations. Since Article II(3) of EDCA
specifically leaves out U.S. contractors from the coverage of the
VFA, they shall not be granted the same entry accommodations and
privileges as those enjoyed by U.S. military and civilian personnel
under the VFA.
Consequently, it is neither mandatory nor obligatory on the part
of the Philippines to admit U.S. contractors into the

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VOL. 779, JANUARY 12, 2016 389


country.259 We emphasize that the admission of aliens into
Philippine territory is “a matter of pure permission and simple
tolerance which creates no obligation on the part of the government
to permit them to stay.”260 Unlike U.S. personnel who are accorded
entry accommodations, U.S. contractors are subject to Philippine
immigration laws.261 The latter must comply with our visa and
passport regulations262 and prove that they are not subject to
exclusion under any provision of Philippine immigration laws.263
The President may also deny
_______________
259 See: Djumantan v. Domingo, 310 Phil. 848; 240 SCRA 746 (1995).
260 Id., at p. 854; p. 752.
261 Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as
amended).
262 Id., Secs. 10 & 11.
263 Id., Secs. 29 & 30. Under Section 29, the following classes of aliens shall be
excluded from entry into the Philippines: (1) Idiots or insane persons and persons who
have been insane; (2) Persons afflicted with a loathsome or dangerous contagious
disease, or epilepsy; (3) Persons who have been convicted of a crime involving moral
turpitude; (4) Prostitutes, or procurers, or persons coming for any immoral purposes;
(5) Persons likely to become, public charge; (6) Paupers, vagrants, and beggars; (7)
Persons who practice polygamy or who believe in or advocate the practice of
polygamy; (8) Persons who believe in or advocate the overthrow by force and
violence of the Government of the Philippines, or of constituted lawful authority, or
who disbelieve in or are opposed to organized government, or who advocate the
assault or assassination of public officials because of their office, or who advocate
or teach principles, theories, or ideas contrary to the Constitution of the
Philippines or advocate or teach the unlawful destruction of property, or who are
members of or affiliated with any organization entertaining or teaching such
doctrines; (9) Persons over fifteen years of age, physically capable of reading, who
cannot read printed matter in ordinary use in any language selected by the alien, but
this provision shall not apply to the grandfather, grandmother, father, mother, wife,
husband or child of a Philippine citizen or of an alien lawfully resident in the
Philippines; (10) Persons who are members of a family accompanying an excluded
alien, unless in the

390


them entry pursuant to his absolute and unqualified power to
prohibit or prevent the admission of aliens whose presence in the
country would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to
expel or deport U.S. contractors265 as may be necessi-

_______________
opinion of the Commissioner of Immigration no hardship would result from their

admission; (11) Persons accompanying an excluded person who is helpless from
mental or physical disability or infancy, when the protection or guardianship of such
accompanying person or persons is required by the excluded person, as shall be
determined by the Commissioner of Immigration; (12) Children under fifteen years of
age, unaccompanied by or not coming to a parent, except that any such children may
be admitted in the discretion of the Commissioner of Immigration, if otherwise
admissible; (13) Stowaways, except that any stowaway may be admitted in the
discretion of the Commissioner of Immigration, if otherwise admissible; (14) Persons
coming to perform unskilled manual labor in pursuance of a promise or offer of
employment, express or implied, but this provision shall not apply to persons bearing
passport visas authorized by Section Twenty of this Act; (15) Persons who have
been excluded or deported from the Philippines, but this provision may be waived
in the discretion of the Commissioner of Immigration: Provided, however, That the
Commissioner of Immigration shall not exercise his discretion in favor of aliens
excluded or deported on the ground of conviction for any crime involving moral
turpitude or for any crime penalized under Sections [45] and [46] of this Act or on the
ground of having engaged in hoarding, black-marketing or profiteering unless such
aliens have previously resided in the Philippines immediately before his exclusion or
deportation for a period of ten years or more or are married to native Filipino women;
(16) Persons who have been removed from the Philippines at the expense of the
Government of the Philippines, as indigent aliens, under the provisions of Section
[43] of this Act, and who have not obtained the consent of the Board of
Commissioners to apply for readmission; and (17) Persons not properly documented
for admission as may be required under the provisions of this Act. (Emphasis
supplied)
264 Supra note 259.
265 Administrative Code of 1987, Book III (Office of the President), Title I
(Powers of the President), Secs. 8 & 11, in relation to

391
VOL. 779, JANUARY 12, 2016 391


tated by national security, public safety, public health, public
morals, and national interest.266 They may also be deported if they
are found to be illegal or undesirable aliens pursuant to the
Philippine Immigration Act267 and the Data Privacy Act.268
_______________
Commonwealth Act No. 613 (The Philippine Immigration Act of 1940), Sec. 52
and Act. No. 2711 (Revised Administrative Code of 1917), Sec. 69. See: Djumantan
v. Domingo, id.; Teo Tung v. Machlan, 60 Phil. 916 (1934).
266 See: Commonwealth Act No. 613 (The Philippine Immigration Act of 1940,
as amended), Secs. 6, 12, 28 & 29; Djumantan v. Domingo, id.; Salazar v. Achacoso,
262 Phil. 160; 183 SCRA 145 (1990); Ledesma, Ronaldo P., Deportation
Proceedings: Practice, Precedents, and Procedures, p. 96 (2013).
267 Id., Sec. 37. The provision enumerates as follows: (1) Any alien who enters
the Philippines x x x by means of false and misleading statements or without
inspection and admission by the immigration authorities x x x; (2) (Any alien who
enters the Philippines x x x, who was not lawfully admissible at the time of entry;
(3) Any alien who, x x x, is convicted in the Philippines and sentenced for a term of
one year or more for a crime involving moral turpitude committed within five years
after his entry to the Philippines, or who, at any time after such entry, is so convicted
and sentenced more than once; (4) Any alien who is convicted and sentenced for a
violation of the law governing prohibited drugs; (5) Any alien who practices
prostitution or is an inmate of a house of prostitution or is connected with the
management of a house of prostitution, or is a procurer; (6) Any alien who becomes a
public charge within five years after entry from causes not affirmatively shown to
have arisen subsequent to entry; (7) Any alien who remains in the Philippines in
violation of any limitation or condition under which he was admitted as a
nonimmigrant; (8) Any alien who believes in, advises, advocates or teaches the
overthrow by force and violence of the Government of the Philippines, or of
constituted law and authority, or who disbelieves in or is opposed to organized
government or who advises, advocates, or teaches the assault or assassination of
public officials because of their office, or who advises, advocates, or teaches the
unlawful destruction of property, or who is a member of or affiliated with any
organization entertaining, advocating or teaching such doctrines, or who in any man-

392


In contrast, Article III(5) of the VFA requires a request for
removal from the Philippine government before a member of the
U.S. personnel may be “dispos[ed] x x x outside of the Philippines.”

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

We begin our analysis by quoting the relevant sections of the
MDT and the VFA that pertain to the activities in which U.S.
military and civilian personnel may engage:
_______________
ner whatsoever lends assistance, financial or otherwise, to the dissemination of

such doctrines; (9) Any alien who commits any of the acts described in Sections [45]
and [46] of this Act, independent of criminal action which may be brought against
him: x x x; (10) Any alien who, at any time within five years after entry, shall have
been convicted of violating the provisions of the Philippine Commonwealth Act
[653], otherwise known as the Philippine Alien Registration Act of 1941, or who, at
any time after entry, shall have been convicted more than once of violating the
provisions of the same Act; (11) Any alien who engages in profiteering, hoarding,
or blackmarketing, independent of any criminal action which may be brought
against him; (12) Any alien who is convicted of any offense penalized under
Commonwealth Act [473], otherwise known as the Revised Naturalization Laws of
the Philippines, or any law relating to acquisition of Philippine citizenship; (13) Any
alien who defrauds his creditor by absconding or alienating properties to prevent them
from, being attached or executed. (Emphasis supplied)
268 Republic Act No. 10173, Sec. 34. According to the provision, “[i]f the
offender is an alien, he or she shall, in addition to the penalties herein prescribed, be
deported without further proceedings after serving the penalties prescribed.”

393
VOL. 779, JANUARY 12, 2016 393


Mutual Defense Treaty
Article II

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

Article III

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

Visiting Forces Agreement
Preamble

x x x
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.
x x x

Article I – Definitions

temporarily in the Philippines in connection with activi-

394


ties approved by the Philippine Government. Within
this definition: x x x.

Article II – Respect for Law

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

Article VII – Importation and Exportation

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

Article VIII – Movement of Vessels and Aircraft

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

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Manifest in these provisions is the abundance of references to the
creation of further “implementing arrangements” including the
identification of “activities [to be] approved by the Philippine
Government.” To determine the parameters of these implementing
arrangements and activities, we referred to the content, purpose, and
framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which
both countries shall engage in joint activities, so that they can
maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities
shall involve joint military trainings, maneuvers, and exercises. Both
the interpretation269 and the subsequent practice270 of the parties
show that the MDT inde-
_______________
269 See: Secretary of Justice v. Lantion, supra note 17. According to the Court:
“An equally compelling factor to consider is the understanding of the parties
themselves to the RP-US Extradition Treaty x x x. 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. x x x 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.” (Emphasis supplied)
270 See Status of Forces Agreement of 1993, supra note 70. The International
Law Commission explains that the subsequent practice of states in the application of
the treaty may be taken into account in ascertaining the parties’ agreement in the
interpretation of that treaty. This is “well-established in the jurisprudence of
international tribunals” even before the Vienna Convention on the Law of Treaties
was concluded. See International Law Commission, Draft Articles on the Law of
Treaties with Commentaries, 1966 (II) Y.B.I.L.C. 187 at pp. 221-222 (citing Russian
Claim for Indemnities [Russia/Turkey], XI R.I.A.A. 421, 433 [1912] [Nov. 11];
Competence of the ILO to Regulate Agricultural Labour, 1922 P.C.I.J. [ser. B] No. 2,
39 [Aug. 12]; Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne,
1925 P.C.I.J. [ser. B] No. 12, 24 [Nov. 21]; Brazilian

396


pendently allows joint military exercises in the country. Lim v.
Executive Secretary271 and Nicolas v. Romulo272 recognized that
Balikatan exercises, which are activities that seek to enhance and
develop the strategic and technological capabilities of the parties to
resist an armed attack, “fall squarely under the provisions of the RP-
US MDT.”273 In Lim, the Court especially noted that the Philippines
and the U.S. continued to conduct joint military exercises even after
the expiration of the MBA and even before the conclusion of the
VFA.274 These activities presumably related to the Status of Forces
Agreement, in which the parties agreed on the status to be accorded
to U.S. military and civilian personnel while conducting activities in
the Philippines in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT
that these joint activities may be conducted on Philippine or on U.S.
soil. The article expressly provides that the
_______________
Loans, 1929 P.C.I.J. [ser. A] No. 21, 119 [Jul. 12]; and Corfu Channel [U.K. v.
Albania], 1949 I.C.J. 4, 25 [Apr. 9]).
271 Lim v. Executive Secretary, supra note 69 at pp. 571-572; p. 752.
273 Id.
274 Lim v. Executive Secretary, supra note 69 at p. 575; p. 755; Joint Report of
the Committee on Foreign Relations and the Committee on National Defense and
Security reproduced in Senate of the Philippines, supra note 69 at p. 206.
275 Status of Forces Agreement of 1993, supra note 70. According to Note No.
93-2301 dated 11 June 1993 of the DFA to the U.S. Embassy, “The [DFA] x x x has
the honor to reaffirm its position that all U.S. military and civilian personnel present
in the Philippines participating in activities undertaken in relation to the Mutual
Defense Treaty will be accorded the same status as the U.S. Embassy’s technical and
administrative personnel who are qualified to enter the Philippines under existing
Philippine laws. The Department further proposes that the procedures as well as the
arrangements for these MDT-related activities are to be mutually agreed upon by the
MDB, subject to the guidelines of the Council of Ministers.”

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term armed attack includes “an armed attack on the
metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed
forces, public vessels or aircraft in the Pacific.” Surely, in
maintaining and developing our defense capabilities, an assessment
or training will need to be performed, separately and jointly by self-
help and mutual aid, in the territories of the contracting parties. It is
reasonable to conclude that the assessment of defense capabilities
would entail understanding the terrain, wind flow patterns, and other
environmental factors unique to the Philippines.
It would also be reasonable to conclude that a simulation of how
to respond to attacks in vulnerable areas would be part of the
training of the parties to maintain and develop their capacity to resist
an actual armed attack and to test and validate the defense plan of
the Philippines. It is likewise reasonable to imagine that part of the
training would involve an analysis of the effect of the weapons that
may be used and how to be prepared for the eventuality. This Court
recognizes that all of this may require training in the area where an
armed attack might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction
with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military
and civilian personnel in the Philippines is “in connection with
activities approved by the Philippine Government.” While the treaty
does not expressly enumerate or detail the nature of activities of
U.S. troops in the country, its Preamble makes explicit references to
the reaffirmation of the obligations of both countries under the MDT.
These obligations include the strengthening of international and
regional security in the Pacific area and the promotion of common
security interests.
The Court has already settled in Lim v. Executive Secretary that
the phrase “activities approved by the Philippine Government”
under Article I of the VFA was intended to be am-

398


biguous in order to afford the parties flexibility to adjust the
details of the purpose of the visit of U.S. personnel.276 In ruling that
the Terms of Reference for the Balikatan Exercises in 2002 fell
within the context of the treaty, this Court explained:

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.
“Balikatan 02-1,” a “mutual anti-terrorism advising,
assisting and training exercise,” falls under the umbrella
of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-
related activities — as opposed to combat itself — such as the
one subject of the instant petition, are indeed authorized.
(Emphases supplied)

The joint report of the Senate committees on foreign relations
and on national defense and security further explains
_______________
276 Lim v. Executive Secretary, supra note 69. See also Joint Report of the
Committee on Foreign Relations and the Committee on National Defense and
Security reproduced in Senate of the Philippines, supra note 69 at pp. 230-231.

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VOL. 779, JANUARY 12, 2016 399


the wide range and variety of activities contemplated in the VFA,
and how these activities shall be identified:277

These joint exercises envisioned in the VFA are not
limited to combat-related activities; they have a wide range
and variety. They include exercises that will reinforce the
AFP’s ability to acquire new techniques of patrol and
surveillance to protect the country’s maritime resources; sea-
search and rescue operations to assist ships in distress; and
disaster-relief operations to aid the civilian victims of natural
calamities, such as earthquakes, typhoons and tidal waves.
x x x x
Joint activities under the VFA will include combat
maneuvers; training in aircraft maintenance and equipment
repair; civic-action projects; and consultations and meetings
of the Philippine-U.S. Mutual Defense Board. It is at the
level of the Mutual Defense Board — which is headed
jointly by the Chief of Staff of the AFP and the Commander in
Chief of the U.S. Pacific Command — that the VFA
exercises are planned. Final approval of any activity
involving U.S. forces is, however, invariably given by the
Philippine Government.
x x x x
Siazon clarified that it is not the VFA by itself that
determines what activities will be conducted between the
armed forces of the U.S. and the Philippines. The VFA
regulates and provides the legal framework for the
presence, conduct and legal status of U.S. personnel while
they are in the country for visits, joint exercises and other
related activities. (Emphases supplied)
_______________
277 Joint Report of the Committee on Foreign Relations and the Committee on
National Defense and Security reproduced in Senate of the Philippines, id., at pp.
205-206, 231.

400


What can be gleaned from the provisions of the VFA, the
joint report of the Senate committees on foreign relations and on
national defense and security, and the ruling of this Court in Lim
is that the “activities” referred to in the treaty are meant to be
specified and identified in further agreements. EDCA is one such
agreement.
EDCA seeks to be an instrument that enumerates the Philippine-
approved activities of U.S. personnel referred to in the VFA. EDCA
allows U.S. military and civilian personnel to perform “activities
approved by the Philippines, as those terms are defined in the
VFA”278 and clarifies that these activities include those conducted
within the Agreed Locations:

1. Security cooperation exercises; joint and combined
training activities; humanitarian assistance and disaster relief
activities; and such other activities as may be agreed upon by
the Parties.279
2. Training; transit; support and related activities; refueling
of aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree.280
3. Exercise of operational control over the Agreed
Locations for construction activities and other types of
activity, including alterations and improvements thereof.281
_______________

279 Id., Art. I(3).
280 Id., Art. III(1).
281 Id., Art. III(4) & (6).

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4. Exercise of all rights and authorities within the Agreed
Locations that are necessary for their operational control or
defense, including the adoption of appropriate measures to
protect U.S. forces and contractors.282
5. Use of water, electricity, and other public utilities.283
6. Operation of their own telecommunication systems,
including the utilization of such means and services as are
required to ensure the full ability to operate
telecommunication systems, as well as the use of the
necessary radio spectrum allocated for this purpose.284

According to Article I of EDCA, one of the purposes of these
activities is to maintain and develop, jointly and by mutual aid, the
individual and collective capacities of both countries to resist an
armed attack. It further states that the activities are in furtherance of
the MDT and within the context of the VFA.
We note that these planned activities are very similar to those
under the Terms of Reference285 mentioned in Lim. Both EDCA and
the Terms of Reference authorize the U.S. to perform the following:
(a) participate in training exercises; (b) retain command over their
forces; (c) establish temporary structures in the country; (d) share in
the use of their respec-
_______________
282 Id., Art. VI(3).

283 Id., Art. VII(1).
284 Id., Art. VII(2).
285 According to the Agreed Minutes of the Discussion between the former
Philippine Vice President/Secretary of Foreign Affairs Teofisto T. Guingona, Jr. and
U.S. Assistant Secretary of State for East Asian and Pacific Affairs James Kelly, both
countries approved the Terms of Agreement of the Balikatan exercises. See: Rollo
(G.R. No. 151445), pp. 99-100.

402


tive resources, equipment and other assets; and (e) exercise their
right to self-defense. We quote the relevant portion of the Terms and
Conditions as follows:286
I. POLICY LEVEL
x x x x
No permanent US basing and support facilities shall be
established. Temporary structures such as those for troop
billeting, classroom instruction and messing may be set up
for use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US
Exercise Co-Directors under the authority of the Chief of
Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their
respective forces under the overall authority of the
Exercise Co-Directors. RP and US participants shall comply
with operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a
period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to
wind up and terminate the Exercise and other activities within
the six month Exercise period.
The Exercise is a mutual counter-terrorism advising,
assisting and training Exercise relative to Philippine efforts
against the ASG, and will be conducted on the Island of
Basilan. Further advising, assisting and training exercises
shall be conducted in Malagutay and the Zamboanga area.
Related activities in Cebu will be for support of the Exercise.
_______________
286 Lim v. Executive Secretary, supra note 69 at pp. 565-566; pp. 746-747.

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x x x x.
US exercise participants shall not engage in combat,
without prejudice to their right of self-defense.
These terms of Reference are for purposes of this Exercise
only and do not create additional legal obligations between the
US Government and the Republic of the Philippines.
II. EXERCISE LEVEL

1. TRAINING
a. The Exercise shall involve the conduct of mutual
military assisting, advising and training of RP and US
Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently
within RP territory.
c. Flight plans of all aircraft involved in the exercise will
comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
x x x x
a. RP and US participating forces may share, in
accordance with their respective laws and regulations, in the
use of their resources, equipment and other assets. They
will use their respective logistics channels. x x x. (Emphases
supplied)

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

404


Petitioners assert287 that the duration of the activities mentioned
in EDCA is no longer consistent with the temporary nature of the
visits as contemplated in the VFA. They point out that Article XII(4)
of EDCA has an initial term of 10 years, a term automatically
renewed unless the Philippines or the U.S. terminates the agreement.
According to petitioners, such length of time already has a badge of
permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro
likewise argues in her Concurring and Dissenting Opinion that the
VFA contemplated mere temporary visits from U.S. forces, whereas
EDCA allows an unlimited period for U.S. forces to stay in the
Philippines.288
However, the provisions of EDCA directly contradict this
argument by limiting itself to 10 years of effectivity. Although this
term is automatically renewed, the process for terminating the
agreement is unilateral and the right to do so automatically accrues
at the end of the 10-year period. Clearly, this method does not create
a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could
not have been by chance that the VFA does not include a maximum
time limit with respect to the presence of U.S. personnel in the
country. We construe this lack of specificity as a deliberate effort on
the part of the Philippine and the U.S. governments to leave out this
aspect and reserve it for the “adjustment in detail” stage of the
implementation of the treaty. We interpret the subsequent,
unconditional concurrence of the Senate in the entire text of the VFA
as an implicit grant to the President of a margin of appreciation in
determining the duration of the “temporary” presence of U.S.
personnel in the country.
_______________
287 Memorandum of Saguisag, et al., pp. 43-46, Rollo (G.R. No. 212426, Vol. II),
pp. 1013-1016.
288 Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De
Castro, p. 526.

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VOL. 779, JANUARY 12, 2016 405


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

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

practice of states as shown in other defense cooperation agreements.
For example, Article XIV(1) of the U.S.-Romania defense
agreement provides the following:

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

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

This Agreement has been concluded for an indefinite
period of time. It may be terminated by written notification
by either Party and in that event it terminates 2 years after the
receipt of the notification. (emphasis supplied)
_______________
289 Dissenting Opinion of Justice Brion, pp. 607-608.

290 Baviera, Aileen S.P., Implications of the US-Philippines Enhanced Defense
Cooperation Agreement, Asia Pacific Bulletin No. 292, 9 May 2014.

406


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

8.1 This Agreement, which consists of a Preamble,
SECTIONS I-VIII, and Annexes A and B, shall become
effective on the date of the last signature affixed below and
shall remain in force until terminated by the Parties,
provided that it may be terminated by either Party upon 180
days written notice of its intention to do so to the other Party.
(emphasis supplied)

On the other hand, Article XXI(3) of the US-Australia Force
Posture Agreement provides a longer initial term:

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

The phrasing in EDCA is similar to that in the U.S.-Australia
treaty but with a term less than half of that is provided in the latter
agreement. This means that EDCA merely follows the practice of
other states in not specifying a non-extendible maximum term. This
practice, however, does not automatically grant a badge of
permanency to its terms. Article XII(4) of EDCA provides very
clearly, in fact, that its effectivity is for an initial term of 10 years,
which is far shorter than the terms of effectivity between the U.S.
and other states. It is simply illogical to conclude that the initial,
extendible term of 10 years somehow gives EDCA provisions a
permanent character.
The reasoning behind this interpretation is rooted in the
constitutional role of the President who, as Commander-in-Chief of
our armed forces, is the principal strategist of the nation and, as
such, duty-bound to defend our national sover-

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VOL. 779, JANUARY 12, 2016 407


eignty and territorial integrity;291 who, as chief architect of our
foreign relations, is the head policymaker tasked to assess, ensure,
and protect our national security and interests;292 who holds the most
comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and
who has unrestricted access to highly classified military intelligence
data294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is
engendered that a much longer period of military training is needed,
the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these
concerns, we acknowledge that the President may not always be able
to candidly and openly discuss the complete situation being faced by
the nation. The Chief Executive’s hands must not be unduly tied,
especially if the situation calls for crafting programs and setting
timelines for approved activities. These activities may be necessary
for maintaining and developing our capacity to resist an armed
attack, ensuring our national sovereignty and territorial integrity, and
securing our national interests. If the Senate decides that the
President is in the best position to define in operational terms the
meaning of temporary in relation to the visits, considered
individually or in their totality, the Court must respect that policy
decision. If the Senate feels that there is no need to set a time limit to
these visits, neither should we.
_______________
291 See Constitution, Art. VII, Sec. 18, in relation to Art. II, Sec. 3.
292 See Administrative Code of 1987, Book IV (Executive Branch), Title I
(Foreign Affairs), Sec. 3(1), in relation to Constitution, Art. VII, Sec. 1 and Art. II,
Sec. 3; Akbayan Citizens Action Party v. Aquino, supra note 15; Pimentel, Jr. v. Office
of the Executive Secretary, supra note 15; Bayan (Bagong Alyansang Makabayan) v.
Zamora, supra note 23.
293 Vinuya v. Romulo, supra note 17.
294 Id.

408


Evidently, the fact that the VFA does not provide specificity in
regard to the extent of the “temporary” nature of the visits of U.S.
personnel does not suggest that the duration to which the President
may agree is unlimited. Instead, the boundaries of the meaning of
the term temporary in Article I of the treaty must be measured
depending on the purpose of each visit or activity.295 That purpose
must be analyzed on a case-by-case basis depending on the factual
circumstances surrounding the conclusion of the implementing
agreement. While the validity of the President’s actions will be
judged under less stringent standards, the power of this Court to
determine whether there was grave abuse of discretion remains
unimpaired.

d. Authorized activities per-
formed by U.S. contractors
within Philippine territory
— who were legitimately
permitted to enter the coun-
try independent of EDCA —
are subject to relevant Phil-
ippine statutes and regula-
tions and must be consistent
with the MDT and the VFA.

Petitioners also raise296 concerns about the U.S. government’s
purported practice of hiring private security contractors in other
countries. They claim that these contractors —
_______________
295 See generally Joint Report of the Committee on Foreign Relations and the
Committee on National Defense and Security reproduced in Senate of the Philippines,
supra note 69 at p. 206. According to the report: “The Mutual Defense Board
programs an average of 10 to 12 exercises annually. Participating U.S. personnel,
numbering from 10 to more than 1,000, stay in Philippine territory from four days to
four weeks, depending on the nature of the exercise.”
296 Memorandum of Bayan, pp. 47-51, Rollo (G.R. No. 212444), pp. 611-615.

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one of which has already been operating in Mindanao since 2004
— have been implicated in incidents or scandals in other parts of the
globe involving rendition, torture and other human rights violations.
They also assert that these contractors employ paramilitary forces in
other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are
authorized to perform only the following activities:
1. Training; transit; support and related activities; refueling
of aircraft; bunkering of vessels; temporary maintenance of
supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree.297
2. Prepositioning and storage of defense equipment,
supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such equipment,
supplies and materiel.298
3. Carrying out of matters in accordance with, and to the
extent permissible under, U.S. laws, regulations, and
policies.299

EDCA requires that all activities within Philippine territory be in
accordance with Philippine law. This means that certain privileges
denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security300 and carrying, owning, and
possessing firearms301 are illegal for foreign civilians.
_______________
297 EDCA, Art. III(1).

298 Id., Art. IV(4).
299 Id., Art. IV(5).
300 Commonwealth Act No. 541.
301 Republic Act No. 10951.

410


The laws in place already address issues regarding the regulation
of contractors. In the 2015 Foreign Investment Negative list,302 the
Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the
list — private security agencies that cannot have any foreign equity
by virtue of Section 4 of Republic Act No. 5487;303 and No. 15,
which regulates contracts for the construction of defense-related
structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of
EDCA must subscribe to corporate and civil requirements imposed
by the law, depending on the entity’s corporate structure and the
nature of its business.
That Philippine laws extraneous to EDCA shall govern the
regulation of the activities of U.S. contractors has been clear even to
some of the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine,
was accused of spilling fuel in the waters off Manila Bay.304 The
Senate Committee on Foreign Relations and the Senate Committee
on Environment and Natural Resources chairperson claimed
environmental and procedural violations by the contractor.305 The
U.S. Navy investigated the contractor
_______________
302 Executive Order No. 184 (2015).

303 Republic Act No. 5487 — The Private Security Agency Law, as amended by
P.D. No. 11.
304 Glenn Defense: SBMA suspension doesn’t cover all our functions, Rappler,
available at <http://www.rappler.com/nation/16688-glenn-defense-sbma-suspension-
does-not-cover-all-functions> (last visited 3 December 2015).
305 Id.; Bordadora, Norman, US Navy contractor liable for Subic waste dumping,
Philippine Daily Inquirer, available at <http://globalnation.inquirer.net/63765/us-
navy-contractor-liable-for-subic-waste-dumping> (last visited 3 December 2015);
Santos, Matikas, US navy contractor dumped millions of liters of wastes in Subic,
Philippine Daily Inquirer, available at <http://globalnation.inquirer.

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and promised stricter guidelines to be imposed upon its
contractors.306 The statement attributed to Commander Ron Steiner
of the public affairs office of the U.S. Navy’s 7th Fleet — that U.S.
Navy contractors are bound by Philippine laws —is of particular
relevance. The statement acknowledges not just the presence of the
contractors, but also the U.S. position that these contractors are
bound by the local laws of their host state. This stance was echoed
by other U.S. Navy representatives.307
This incident simply shows that the Senate was well aware of the
presence of U.S. contractors for the purpose of fulfilling the terms of
the VFA. That they are bound by Philippine law is clear to all, even
to the U.S.
As applied to EDCA, even when U.S. contractors are granted
access to the Agreed Locations, all their activities must be consistent
with Philippine laws and regulations and pursuant to the MDT and
the VFA.
While we recognize the concerns of petitioners, they do not give
the Court enough justification to strike down EDCA. In Lim v.
Executive Secretary, we have already explained that we cannot take
judicial notice of claims aired in news reports, “not because of any
issue as to their truth, accuracy, or impartiality, but for the simple
reason that facts must be established in accordance with the rules of
evidence.”308 What is
_______________
net/63649/us-navy-contractor-dumped-millions-of-liters-of-wastes-in-subic> (last
visited 3 December 2015).
306 Cabreza, Vincent, US Embassy says dumping of untreated waste in Subic not
condoned, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/60255/us-embassy-says-dumping-of-untreated-
waste-in-subic-not-condoned> (last visited 3 December 2015).
307 Gonzaga, Robert, Contractor could face sanctions from US navy for
violations, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/56622/contractor-could-face-sanctions-from-usnavy-
for-violations> (last visited 3 December 2015).
308 Lim v. Executive Secretary, supra note 69 at p. 580; pp. 759-760.

412


more, we cannot move one step ahead and speculate that the
alleged illegal activities of these contractors in other countries would
take place in the Philippines with certainty. As can be seen from the
above discussion, making sure that U.S. contractors comply with
Philippine laws is a function of law enforcement. EDCA does not
stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly
excluded from the coverage of the VFA. As visiting aliens, their
entry, presence, and activities are subject to all laws and treaties
applicable within the Philippine territory. They may be refused entry
or expelled from the country if they engage in illegal or undesirable
activities. There is nothing that prevents them from being detained
in the country or being subject to the jurisdiction of our courts. Our
penal laws,309 labor laws,310 and immigrations laws311 apply to them
_______________
309 See R.A. No. 10591 or the Comprehensive Firearms and Ammunition
Regulation Act. According to Section 4, Article II thereof: In order to qualify and
acquire a license to own and possess a firearm or firearms and ammunition, the
applicant must be a Filipino citizen, at least twenty-one (21) years old and has
gainful work, occupation or business or has filed an Income Tax Return (ITR) for the
preceding year as proof of income, profession, business or occupation. In addition,
the applicant shall submit the following certification issued by appropriate authorities
attesting the following: x x x x. On the other hand, Section 5 states: “A juridical
person maintaining its own security force may be issued a regular license to own
and possess firearms and ammunition under the following conditions: (a) It must
be Filipino-owned and duly registered with the Securities and Exchange
Commission (SEC); (b) It is current, operational and a continuing concern; (c) It has
completed and submitted all its reportorial requirements to the SEC; and (d) It has
paid all its income taxes for the year, as duly certified by the Bureau of Internal
Revenue. x x x x. Security agencies and LGUs shall be included in this category of
licensed holders but shall be subject to additional requirements as may be required by
the Chief of the PNP.” Finally, Section 22 expresses: “A person

413
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and therefore limit their activities here. Until and unless there is
another law or treaty that specifically deals with their entry and
activities, their presence in the country is subject to unqualified
Philippine jurisdiction.
_______________
arriving in the Philippines who is legally in possession of any firearm or

ammunition in his/her country of origin and who has declared the existence of the
firearm upon embarkation and disembarkation but whose firearm is not registered in
the Philippines in accordance with this Act shall deposit the same upon written
receipt with the Collector of Customs for delivery to the FEO of the PNP for
safekeeping, or for the issuance of a permit to transport if the person is a competitor
in a sports shooting competition. If the importation of the same is allowed and the
party in question desires to obtain a domestic firearm license, the same should be
undertaken in accordance with the provisions of this Act. If no license is desired
or leave to import is not granted, the firearm or ammunition in question shall remain
in the custody of the FEO of the PNP until otherwise disposed of in accordance with
law.” (Emphasis supplied)
310 Article 40 of the Labor Code, as amended, provides: “Employment permit of
nonresident aliens.—Any alien seeking admission to the Philippines for
employment purposes and any domestic or foreign employer who desires to engage
an alien for employment in the Philippines shall obtain an employment permit
from the Department of Labor. The employment permit may be issued to a
nonresident alien or to the applicant employer after a determination of the
nonavailability of a person in the Philippines who is competent, able and willing
at the time of application to perform the services for which the alien is desired.
For an enterprise registered in preferred areas of investments, said employment
permit may be issued upon recommendation of the government agency charged
with the supervision of said registered enterprise.” (Emphasis supplied)
311 Supra notes 263 and 267.

414

EDCA does not allow the presence

of U.S.-owned or -controlled mili-
tary 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) of EDCA talks about American forces’
unimpeded access to the Agreed Locations for all matters relating to
the prepositioning and storage of U.S. military equipment, supplies,
and materiel. Third, Article VII of EDCA authorizes U.S. forces to
use public utilities and to operate their own telecommunications
system.

a. Preliminary point on
badges of exclusivity.

As a preliminary observation, petitioners have cherry-picked
provisions of EDCA by presenting so-called “badges of exclusivity,”
despite the presence of contrary provisions within the text of the
agreement itself.
First, they clarify the word “return” in Article V(2) of EDCA.
However, the use of the word “return” is within the context of a
lengthy provision. The provision as a whole reads as follows:
_______________
pp. 995-999.

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The United States shall return to the Philippines any
Agreed Locations, or any portion thereof, including non-
relocatable structures and assemblies constructed, modified, or
improved by the United States, once no longer required by
United States forces for activities under this Agreement. The
Parties or the Designated Authorities shall consult regarding
the terms of return of any Agreed Locations, including
possible compensation for improvements or construction.

The context of use is “required by United States forces for
activities under this Agreement.” Therefore, the return of an Agreed
Location would be within the parameters of an activity that the
Mutual Defense Board (MDB) and the Security Engagement Board
(SEB) would authorize. Thus, possession by the U.S. prior to its
return of the Agreed Location would be based on the authority given
to it by a joint body co-chaired by the “AFP Chief of Staff and
Commander, U.S. PACOM with representatives from the
Philippines’ Department of National Defense and Department of
Foreign Affairs sitting as members.”313 The terms shall be
negotiated by both the Philippines and the U.S., or through their
Designated Authorities. This provision, seen as a whole, contradicts
petitioners’ interpretation of the return as a “badge of exclusivity.”
In fact, it shows the cooperation and partnership aspect of EDCA in
full bloom.
Second, the term “unimpeded access” must likewise be viewed
from a contextual perspective. Article IV(4) states that U.S. forces
and U.S. contractors shall have “unimpeded access to Agreed
Locations for all matters relating to the prepositioning and storage of
defense equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such
equipment, supplies and materiel.”
_______________
313 PH-US MDB and SEB Convenes, Department of National Defense, available
at <http://www.dndph.org/press-releases/ph-us-mdb-and-seb-convenes> (last visited 3
December 2015).

416

At the beginning of Article IV, EDCA states that the Philippines
gives the U.S. the authority to bring in these equipment, supplies,
and materiel through the MDB and SEB security mechanism. These
items are owned by the U.S.,314 are exclusively for the use of the
U.S.315 and, after going through the joint consent mechanisms of the
MDB and the SEB, are within the control of the U.S.316 More
importantly, before these items are considered prepositioned, they
must have gone through the process of prior authorization by the
MDB and the SEB and given proper notification to the AFP.317
Therefore, this “unimpeded access” to the Agreed Locations is a
necessary adjunct to the ownership, use, and control of the U.S. over
its own equipment, supplies, and materiel and must have first been
allowed by the joint mechanisms in play between the two states
since the time of the MDT and the VFA. It is not the use of the
Agreed Locations that is exclusive per se; it is mere access to items
in order to exercise the rights of ownership granted by virtue of the
Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public
utilities and to operate their own telecommunications system, it will
be met and answered in part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of
and in fact bears a one-to-one correspondence with the
_______________
314 EDCA, Art. IV(3).

315 Id.
316 Id.
317 Id.
318 Such rights gleaned from Title II, Chapter I of the Civil Code are (Cojuangco
v. Sandiganbayan, 604 Phil. 670; 586 SCRA 790 [2009]) the right to possess, to use
and enjoy, to abuse or consume, to accessories, to dispose or alienate, to recover or
vindicate, and to the fruits.
pp. 999-1003; Memorandum of Bayan, et al., pp. 41-71, Rollo (G.R. No. 212444), pp.
605-635.

417
VOL. 779, JANUARY 12, 2016 417


provisions of the 1947 MBA. They assert that both agreements
(a) allow similar activities within the area; (b) provide for the same
“species of ownership” over facilities; and (c) grant operational
control over the entire area. Finally, they argue320 that EDCA is in
fact an implementation of the new defense policy of the U.S.
According to them, this policy was not what was originally intended
either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners321 simply show that
under the MBA, the U.S. had the right to construct, operate,
maintain, utilize, occupy, garrison, and control the bases. The so-
called parallel provisions of EDCA allow only operational control
over the Agreed Locations specifically for construction activities.
They do not allow the overarching power to operate, maintain,
utilize, occupy, garrison, and control a base with full discretion.
EDCA in fact limits the rights of the U.S. in respect of every
activity, including construction, by giving the MDB and the SEB the
power to determine the details of all activities such as, but not
limited to, operation, maintenance, utility, occupancy, garrisoning,
and control.322
The “species of ownership” on the other hand, is distinguished by
the nature of the property. For immovable property constructed or
developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.323 On the other hand, for
movable properties brought into the Philippines by the U.S., EDCA
provides that ownership is retained by the latter. In contrast, the
MBA dictates
_______________
pp. 1003-1005.
321 Id., at pp. 1000-1001.
322 Id., at p. 1000. EDCA, Arts. I(1)(b), I(2), I(3), & III(4).
323 Id., at p. 1002.

418


that the U.S. retains ownership over immovable and movable
properties.
To our mind, both EDCA and the MBA simply incorporate what
is already the law of the land in the Philippines. The Civil Code’s
provisions on ownership, as applied, grant the owner of a movable
property full rights over that property, even if located in another
person’s property.324
The parallelism, however, ends when the situation involves
facilities that can be considered immovable. Under the MBA, the
U.S. retains ownership if it paid for the facility.325 Under EDCA, an
immovable is owned by the Philippines, even if built completely on
the back of U.S. funding.326 This is consistent with the constitutional
prohibition on foreign land ownership.327
Despite the apparent similarity, the ownership of property is but a
part of a larger whole that must be considered before the
constitutional restriction is violated. Thus, petitioners’ points on
operational control will be given more attention in the discussion
below. The arguments on policy are, however, outside the scope of
judicial review and will not be discussed.
Moreover, a direct comparison of the MBA and EDCA will result
in several important distinctions that would allay suspicion that
EDCA is but a disguised version of the MBA.

b. There are substantial
matters that the U.S. can-
not do under EDCA, but
which it was authorized to
do under the 1947 MBA.
_______________
324 See generally Civil Code, Arts. 427-429.

pp. 1001-1002.
326 Id.
327 Constitution, Art. XII, Sec. 7.

419
VOL. 779, JANUARY 12, 2016 419


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

420

421
VOL. 779, JANUARY 12, 2016 421

422


423
VOL. 779, JANUARY 12, 2016 423


424


425
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426


427
VOL. 779, JANUARY 12, 2016 427


428


429
VOL. 779, JANUARY 12, 2016 429


430

431
VOL. 779, JANUARY 12, 2016 431


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

c. The meaning of military
facilities and bases.

An appreciation of what a military base is, as understood by the
Filipino people in 1987, would be vital in determining whether
EDCA breached the constitutional restriction.
Prior to the drafting of the 1987 Constitution, the last definition
of “military base” was provided under Presidential

432


Decree No. (PD) 1227.328 Unlawful entry into a military base is
punishable under the decree as supported by Article 281 of the
Revised Penal Code, which itself prohibits the act of trespass.
Section 2 of the law defines the term in this manner: “‘[M]ilitary
base’ as used in this decree means any military, air, naval, or coast
guard reservation, base, fort, camp, arsenal, yard, station, or
installation in the Philippines.”
Commissioner Tadeo, in presenting his objections to U.S.
presence in the Philippines before the 1986 Constitutional
Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O’Donnel
20,000 hectares Crow Valley Weapon’s Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described

its coverage in its Declaration of Policies:

Sec. 2. Declaration of Policies.—It is hereby declared
the policy of the Government to accelerate the sound and
balanced conversion into alternative productive uses of the
Clark and Subic military reservations and their extensions
(John Hay Station, Wallace Air Station, O’Donnell
Transmitter Station, San Miguel Naval Communications
Station and Capas Relay Station), to
_______________
328 P.D. No. 1227 – Punishing Unlawful Entry into Any Military Base in the
Philippines, Sec. 2.
329 IV Record, Constitutional Commission, p. 648 (15 September 1986).

433
VOL. 779, JANUARY 12, 2016 433


raise funds by the sale of portions of Metro Manila military
camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the
lands covered under the 1947 Military Bases Agreement
between the Philippines and the United States of America, as
amended.330

The result of the debates and subsequent voting is Section 25,
Article XVIII of the Constitution, which specifically restricts, among
others, foreign military facilities or bases. At the time of its crafting
of the Constitution, the 1986 Constitutional Commission had a clear
idea of what exactly it was restricting. While the term “facilities and
bases” was left undefined, its point of reference was clearly those
areas covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-
evolving world of military technology and geopolitics has surpassed
the understanding of the Philippine people in 1986. The last direct
military action of the U.S. in the region was the use of Subic base as
the staging ground for Desert Shield and Desert Storm during the
Gulf War.331 In 1991, the Philippine Senate rejected the successor
treaty of the 1947 MBA that would have allowed the continuation of
U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the
Philippines had to evolve likewise, taking into consideration the
subsisting agreements between both parties, the rejection of the 1991
proposal, and a concrete understanding of what was constitutionally
restricted. This trend birthed the VFA which, as discussed, has
already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept
termed “Agreed Locations.”
By definition, Agreed Locations are:
_______________
330 R.A. No. 7227.

331 Padua, supra note 64.

434


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

Preliminarily, respondent already claims that the proviso that the
Philippines shall retain ownership of and title to the Agreed
Locations means that EDCA is “consistent with Article II of the
VFA which recognizes Philippine sovereignty and jurisdiction over
locations within Philippine territory.”333
By this interpretation, respondent acknowledges that the
contention of petitioners springs from an understanding that the
Agreed Locations merely circumvent the constitutional restrictions.
Framed differently, the bone of contention is whether the Agreed
Locations are, from a legal perspective, foreign military facilities or
bases. This legal framework triggers Section 25, Article XVIII, and
makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the
U.S. is authorized by the Philippines to “conduct the following
activities: “training; transit; support and related activities; refueling
of aircraft; bunkering of vessels; temporary maintenance of vehicles,
vessels and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies and
materiel; deploying forces and materiel; and such other activities as
the Parties may agree.”
This creation of EDCA must then be tested against a proper
interpretation of the Section 25 restriction.
_______________

333 Memorandum of OSG, p. 23, Rollo (G.R. No. 212426), p. 453.

435
VOL. 779, JANUARY 12, 2016 435

d. Reasons for the constitu-
tional requirements and le-
gal standards for constitu-
tionally compatible mili-
tary bases and facilities.

Section 25 does not define what is meant by a “foreign military
facility or base.” While it specifically alludes to U.S. military
facilities and bases that existed during the framing of the
Constitution, the provision was clearly meant to apply to those bases
existing at the time and to any future facility or base. The basis for
the restriction must first be deduced from the spirit of the law, in
order to set a standard for the application of its text, given the
particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional
Commissioners to glean, from their collective wisdom, the intent of
Section 25. Their speeches are rich with history and wisdom and
present a clear picture of what they considered in the crafting the
provision.

SPEECH OF COMMISSIONER REGALADO334
x x x x
We have been regaled here by those who favor the
adoption of the anti-bases provisions with what purports to be
an objective presentation of the historical background of the
military bases in the Philippines. Care appears, however, to
have been taken to underscore the inequity in their inception
as well as their implementation, as to seriously reflect on the
supposed objectivity of the report. Pronouncements of military
and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the
implication is that the same remains valid today, as if
_______________
334 IV Record, Constitutional Commission, pp. 628-630 (15 September 1986).

436


the world and international activity stood still for the last
40 years.
We have been given inspired lectures on the effect of
the presence of the military bases on our sovereignty —
whether in its legal or political sense is not clear — and the
theory that any country with foreign bases in its territory
cannot claim to be fully sovereign or completely
independent.
I was not aware that the concepts of sovereignty and
independence have now assumed the totality principle, such
that a willing assumption of some delimitations in the exercise
of some aspects thereof would put that State in a lower
bracket of nationhood.
x x x x
We have been receiving a continuous influx of materials on
the pros and cons on the advisability of having military bases
within our shores. Most of us who, only about three months
ago, were just mulling the prospects of these varying
contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent
implications of the military bases but also on their political,
social, economic and cultural impact on our national life. We
are asked to answer a plethora of questions, such as: 1)
whether the bases are magnets of nuclear attack or are
deterrents to such attack; 2) whether an alliance or mutual
defense treaty is a derogation of our national sovereignty; 3)
whether criticism of us by Russia, Vietnam and North Korea
is outweighed by the support for us of the ASEAN countries,
the United States, South Korea, Taiwan, Australia and New
Zealand; and 4) whether the social, moral and legal problems
spawned by the military bases and their operations can be
compensated by the economic benefits outlined in papers
which have been furnished recently to all of us.335
x x x x
_______________
335 Id., at p. 628.

437
VOL. 779, JANUARY 12, 2016 437


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

x x x x

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the
resolution of the problem of the removal of foreign bases from
the Philippines have been adequately treated by previous
speakers. Let me, therefore, just recapitulate the arguments
adduced in favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own
destiny without outside interference;
2. That no lasting peace and no true sovereignty would
ever be achieved so long as there are foreign military forces in
our country;
3. That the presence of foreign military bases deprives
us of the very substance of national sovereignty and this is a
constant source of national embarrassment and an insult to our
national dignity and self-respect as a nation;
_______________
336 Id., at p. 629.

337 Id., at pp. 630-631.

438


4. That these foreign military bases unnecessarily expose
our country to devastating nuclear attacks;
5. That these foreign military bases create social
problems and are designed to perpetuate the strangle-hold of
United States interests in our national economy and
development;
6. That the extraterritorial rights enjoyed by these
foreign bases operate to deprive our country of jurisdiction
over civil and criminal offenses committed within our own
national territory and against Filipinos;
7. That the bases agreements are colonial impositions
and dictations upon our helpless country; and
8. That on the legal viewpoint and in the ultimate
analysis, all the bases agreements are null and void ab initio,
especially because they did not count the sovereign consent
and will of the Filipino people.338

x x x x
In the real sense, Madam President, if we in the
Commission could accommodate the provisions I have cited,
what is our objection to include in our Constitution a matter as
priceless as the nationalist values we cherish? A matter of the
gravest concern for the safety and survival of this nation
indeed deserves a place in our Constitution.
x x x x
x x x Why should we bargain away our dignity and our
self-respect as a nation and the future of generations to come
with thirty pieces of silver?339
_______________
338 Id., at p. 630.

339 Id., at p. 631.

439
VOL. 779, JANUARY 12, 2016 439


SPEECH OF COMMISSIONER BENNAGEN340
x x x x
The underlying principle of military bases and nuclear
weapons wherever they are found and whoever owns them is
that those are for killing people or for terrorizing
humanity. This objective by itself at any point in history is
morally repugnant. This alone is reason enough for us to
constitutionalize the ban on foreign military bases and on
nuclear weapons.341

SPEECH OF COMMISSIONER BACANI342
x x x x
x x x Hence, the remedy to prostitution does not seem to
be primarily to remove the bases because even if the bases
are removed, the girls mired in poverty will look for their
clientele elsewhere. The remedy to the problem of prostitution
lies primarily elsewhere — in an alert and concerned citizenry,
a healthy economy and a sound education in values.343

SPEECH OF COMMISSIONER JAMIR344
x x x x
One of the reasons advanced against the maintenance
of foreign military bases here is that they impair portions
of our sovereignty. While I agree that our country’s
sovereignty should not be impaired, I also hold the view that
there are times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this
effect. Thus, during World War II, England leased its bases in
the West Indies and in Bermuda for 99 years to the United
_______________
340 Id., at pp. 632-634.

341 Id., at p. 632.
342 Id., at pp. 634-635.
343 Id., at p. 634.
344 Id., at pp. 635-636.

440


States for its use as naval and air bases. It was done in
consideration of 50 overaged destroyers which the United
States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia
to the United States for the latter’s use as a naval base in the
Indian Ocean. About the same time, the United States
obtained bases in Spain, Egypt and Israel. In doing so, these
countries, in effect, contributed to the launching of a
preventive defense posture against possible trouble in the
Middle East and in the Indian Ocean for their own
protection.345

SPEECH OF COMMISSIONER TINGSON346
x x x x
In the case of the Philippines and the other Southeast Asian
nations, the presence of American troops in the country is a
projection of America’s security interest. Enrile said that
nonetheless, they also serve, although in an incidental and
secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission,
namely: It is ideal for us as an independent and sovereign
nation to ultimately abrogate the RP-US military treaty
and, at the right time, build our own air and naval
might.347
x x x x
Allow me to say in summation that I am for the
retention of American military bases in the Philippines
provided that such an extension from one period to
another shall be concluded upon concurrence of the
parties, and such extension shall be based on justice, the
historical amity of

_______________
345 Id., at p. 636.

346 Id., at pp. 637-639.
347 Id., at p. 638.

441
VOL. 779, JANUARY 12, 2016 441


the people of the Philippines and the United States and
their common defense interest.348

SPEECH OF COMMISSIONER ALONTO349
x x x x
Madam President, sometime ago after this Commission
started with this task of framing a constitution, I read a
statement of President Aquino to the effect that she is for the
removal of the U.S. military bases in this country but that the
removal of the U.S. military bases should not be done just to
give way to other foreign bases. Today, there are two world
superpowers, both vying to control any and all countries
which have importance to their strategy for world domination.
The Philippines is one such country.
Madam President, I submit that I am one of those ready
to completely remove any vestiges of the days of
enslavement, but not prepared to erase them if to do so would
merely leave a vacuum to be occupied by a far worse type.350

SPEECH OF COMMISSIONER GASCON351
x x x x
Let us consider the situation of peace in our world today.
Consider our brethren in the Middle East, in Indo-China,
Central America, in South Africa — there has been escalation
of war in some of these areas because of foreign intervention
which views these conflicts through the narrow prism of the
East-West conflict. The United States bases have been used
as springboards for intervention in some of these conflicts.
We should not allow ourselves to be party to the warlike
mentality of these foreign interventionists. We must al-
_______________
348 Id., at p. 639.

349 Id., at pp. 640-641.
350 Id., at p. 640.
351 Id., at pp. 641-645.

442


ways be on the side of peace — this means that we should
not always rely on military solution.352
x x x x
x x x The United States bases, therefore, are springboards
for intervention in our own internal affairs and in the
affairs of other nations in this region.
x x x x
Thus, I firmly believe that a self-respecting nation should
safeguard its fundamental freedoms which should logically be
declared in black and white in our fundamental law of the land
— the Constitution. Let us express our desire for national
sovereignty so we may be able to achieve national self-
determination. Let us express our desire for neutrality so that
we may be able to follow active nonaligned independent
foreign policies. Let us express our desire for peace and a
nuclear-free zone so we may be able to pursue a healthy and
tranquil existence, to have peace that is autonomous and not
imposed.353

x x x x
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ba ang kahulugan ng U.S.
military bases? Para sa magbubukid, ang kahulugan nito ay
pagkaalipin. Para sa magbubukid, ang pananatili ng U.S.
military bases ay tinik sa dibdib ng sambayanang Pilipinong
patuloy na nakabaon. Para sa sambayanang magbubukid,
ang ibig sabihin ng U.S. military bases ay batong pabigat na
patuloy na pinapasan ng sambayanang Pilipino. Para sa
sambayanang magbubukid, ang pananatili ng U.S. military
bases ay isang nagdudumilat na katotohanan ng patuloy na
paggahasa ng imperyalistang Estados Unidos sa ating Inang
Bayan — economically, po-
_______________
352 Id., at p. 643.

353 Id., at p. 644.
354 Id., at pp. 645-649.

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VOL. 779, JANUARY 12, 2016 443


litically and culturally. Para sa sambayanang magbubukid ang
U.S. military bases ay kasingkahulugan ng nuclear weapon —
ang kahulugan ay magneto ng isang nuclear war. Para sa
sambayanang magbubukid, ang kahulugan ng U.S. military bases
ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356
x x x x
The drift in the voting on issues related to freeing ourselves
from the instruments of domination and subservience has clearly
been defined these past weeks.
x x x x
So for the record, Mr. Presiding Officer, I would like to declare
my support for the committee’s position to enshrine in the
Constitution a fundamental principle forbidding foreign military
bases, troops or facilities in any part of the Philippine territory as a
clear and concrete manifestation of our inherent right to
national self-determination, independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes
of genuine nationhood to the social cost of allowing foreign
countries to maintain military bases in our country. Previous
speakers have dwelt on this subject, either to highlight its
importance in relation to the other issues or to gloss over its
significance and make this a part of future negotiations.357
x x x x
Mr. Presiding Officer, I feel that banning foreign military bases is
one of the solutions and is the response of the Filipino people
against this condition and other conditions that have already been
clearly and emphati-
_______________
355 Id., at p. 645.

356 Id., at pp. 649-652.
357 Id., at p. 650.

444


cally discussed in past deliberations. The deletion,
therefore, of Section 3 in the Constitution we are drafting will
have the following implications:
First, the failure of the Constitutional Commission to
decisively respond to the continuing violation of our
territorial integrity via the military bases agreement which
permits the retention of U.S. facilities within the Philippine
soil over which our authorities have no exclusive
jurisdiction contrary to the accepted definition of the
exercise of sovereignty.
Second, consent by this forum, this Constitutional
Commission, to an exception in the application of a
provision in the Bill of Rights that we have just drafted
regarding equal application of the laws of the land to all
inhabitants, permanent or otherwise, within its territorial
boundaries.
Third, the continued exercise by the United States of
extraterritoriality despite the condemnations of such practice
by the world community of nations in the light of
overwhelming international approval of eradicating all
vestiges of colonialism.358
x x x x
Sixth, the deification of a new concept called pragmatic
sovereignty, in the hope that such can be wielded to force the
United States government to concede to better terms and
conditions concerning the military bases agreement, including
the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we
have to suffer all existing indignities and disrespect towards
our rights as a sovereign nation.
x x x x
Eighth, the utter failure of this forum to view the issue
of foreign military bases as essentially a question of
sovereignty which does not require in-
_______________
358 Id., at p. 651.

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VOL. 779, JANUARY 12, 2016 445


depth studies or analyses and which this forum has, as a
constituent assembly drafting a constitution, the expertise and
capacity to decide on except that it lacks the political will that
brought it to existence and now engages in an elaborate
scheme of buck-passing.
x x x x
Without any doubt we can establish a new social order in
our country, if we reclaim, restore, uphold and defend our
national sovereignty. National sovereignty is what the
military bases issue is all about. It is only the sovereign
people exercising their national sovereignty who can design
an independent course and take full control of their national
destiny.359

SPEECH OF COMMISSIONER PADILLA360
x x x x
Mr. Presiding Officer, in advocating the majority
committee report, specifically Sections 3 and 4 on neutrality,
nuclear and bases-free country, some views stress sovereignty
of the Republic and even invoke survival of the Filipino
nation and people.361

REBUTTAL OF COMMISSIONER NOLLEDO362
x x x x
The anachronistic and ephemeral arguments against the
provisions of the committee report to dismantle the American
bases after 1991 only show the urgent need to free our
country from the entangling alliance with any power
bloc.363
x x x x
x x x x Mr. Presiding Officer, it is not necessary for us to
possess expertise to know that the so-called RP-US Bases
_______________
359 Id., at p. 652.

360 Id., at pp. 652-653.
361 Id.
362 Id., at pp. 653-654.
363 Id., at p. 653.

446


Agreement will expire in 1991, that it infringes on our
sovereignty and jurisdiction as well as national dignity and
honor, that it goes against the UN policy of disarmament and
that it constitutes unjust intervention in our internal
affairs.364 (Emphases supplied)

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

i. First standard: independence
from foreign control

Very clearly, much of the opposition to the U.S. bases at the time
of the Constitution’s drafting was aimed at asserting Philippine
independence from the U.S., as well as control over our country’s
territory and military.
Under the Civil Code, there are several aspects of control
exercised over property.
Property is classified as private or public.365 It is public if
“intended for public use, such as roads, canals, rivers, torrents, ports
and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character[,]” or
_______________
364 Id., at p. 654.

365 Civil Code, Art. 419.

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VOL. 779, JANUARY 12, 2016 447


“[t]hose which belong to the State, without being for public use,
and are intended for some public service or for the development of
the national wealth.”366
Quite clearly, the Agreed Locations are contained within a
property for public use, be it within a government military camp or
property that belongs to the Philippines.
Once ownership is established, then the rights of ownership flow
freely. Article 428 of the Civil Code provides that “[t]he owner has
the right to enjoy and dispose of a thing, without other limitations
than those established by law.” Moreover, the owner “has also a
right of action against the holder and possessor of the thing in order
to recover it.”
Philippine civil law therefore accords very strong rights to the
owner of property, even against those who hold the property.
Possession, after all, merely raises a disputable presumption of
ownership, which can be contested through normal judicial
processes.367
In this case, EDCA explicitly provides that ownership of the
Agreed Locations remains with the Philippine government.368 What
U.S. personnel have a right to, pending mutual agreement, is access
to and use of these locations.369
The right of the owner of the property to allow access and use is
consistent with the Civil Code, since the owner may dispose of the
property in whatever way deemed fit, subject to the limits of the law.
So long as the right of ownership itself is not transferred, then
whatever rights are transmitted by agreement does not completely
divest the owner of the rights over the property, but may only limit
them in accordance with law.
_______________
366 Id., Art. 420.

367 Id., Art. 433.
368 EDCA, Art. V.
369 Id., Art. II(4).

448


Hence, even control over the property is something that an owner
may transmit freely. This act does not translate into the full transfer
of ownership, but only of certain rights. In Roman Catholic
Apostolic Administrator of Davao, Inc. v. Land Registration
Commission, we stated that the constitutional proscription on
property ownership is not violated despite the foreign national’s
control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is
essentially a contract of use and access. Under its pertinent
provisions, it is the Designated Authority of the Philippines that
shall, when requested, assist in facilitating transit or access to public
land and facilities.371 The activities carried out within these locations
are subject to agreement as authorized by the Philippine
government.372 Granting the U.S. operational control over these
locations is likewise subject to EDCA’s security mechanisms, which
are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a
duly designated representative is given access to the Agreed
Locations.374
To our mind, these provisions do not raise the spectre of U.S.
control, which was so feared by the Constitutional Commission. In
fact, they seem to have been the product of deliberate negotiation
from the point of view of the Philippine government, which
balanced constitutional restrictions on foreign military bases and
facilities against the security needs of the country. In the 1947 MBA,
the U.S. forces had “the right, power and authority x x x to construct
(including dredging and filling), operate, maintain, utilize, occupy,
garrison
_______________
370 Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration

Commission, 102 Phil. 596 (1957).
372 Id., Art. III(1).
373 Id., Art. III(4).
374 Id., Art. III(5).

449
VOL. 779, JANUARY 12, 2016 449


and control the bases.”375 No similarly explicit provision is
present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign
military facilities and bases has been raised by the present
Constitution. Section 25 is explicit that foreign military bases,
troops, or facilities shall not be allowed in the Philippines, except
under a treaty duly concurred in by the Senate. Merely stating that
the Philippines would retain ownership would do violence to the
constitutional requirement if the Agreed Locations were simply to
become a less obvious manifestation of the U.S. bases that were
rejected in 1991.
When debates took place over the military provisions of the
Constitution, the committee rejected a specific provision proposed
by Commissioner Sarmiento. The discussion illuminates and
provides context to the 1986 Constitutional Commission’s vision of
control and independence from the U.S., to wit:

MR. SARMIENTO: Madam President, my proposed
amendment reads as follows: “THE STATE SHALL
ESTABLISH AND MAINTAIN AN INDEPENDENT AND
SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES.” Allow me to briefly explain, Madam
President. The Armed Forces of the Philippines is a vital
component of Philippine society depending upon its training,
orientation and support. It will either be the people’s protector
or a staunch supporter of a usurper or tyrant, local and foreign
interest. The Armed Forces of the Philippines’ past and
recent experience shows it has never been independent and
self-reliant. Facts, data and statistics will show that it has
been substantially dependent upon a foreign power. In March
1968, Congressman Barbero, himself a member of the Armed
Forces of the Philippines, revealed top secret documents
showing what he described as U.S. dictation over the af-
_______________
375 1947 MBA, III(2)(a).

450


fairs of the Armed Forces of the Philippines. He showed
that under existing arrangements, the United States
unilaterally determines not only the types and quantity of
arms and equipments that our armed forces would have,
but also the time when these items are to be made
available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the
Armed Forces of the Philippines is under the effective
control of the U.S. government.376 (Emphases supplied)

Commissioner Sarmiento proposed a motherhood statement in
the 1987 Constitution that would assert “independent” and “self-
reliant” armed forces. This proposal was rejected by the
committee, however. As Commissioner De Castro asserted, the
involvement of the Philippine military with the U.S. did not, by
itself, rob the Philippines of its real independence. He made
reference to the context of the times: that the limited resources of the
Philippines and the current insurgency at that time necessitated a
strong military relationship with the U.S. He said that the U.S.
would not in any way control the Philippine military despite this
relationship and the fact that the former would furnish military
hardware or extend military assistance and training to our military.
Rather, he claimed that the proposal was in compliance with the
treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note
of my speech on U.S. military bases on 12 September 1986, I
spoke on the self-reliance policy of the armed forces.
However, due to very limited resources, the only thing we
could do is manufacture small arms ammunition. We cannot
blame the armed forces. We have to blame the whole Republic
of the Philippines for failure to provide the necessary funds to
make the Philippine
_______________
376 V Record, Constitutional Commission, p. 240 (30 September 1986).

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VOL. 779, JANUARY 12, 2016 451


Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an
insurgency case, a rebellion in our country —insurgency —
and with very limited funds and very limited number of men,
it will be quite impossible for the Philippines to appropriate
the necessary funds therefor. However, if we say that the
U.S. government is furnishing us the military hardware, it
is not control of our armed forces or of our government. It
is in compliance with the Mutual Defense Treaty. It is
under the military assistance program that it becomes the
responsibility of the United States to furnish us the necessary
hardware in connection with the military bases agreement.
Please be informed that there are three (3) treaties connected
with the military bases agreement; namely: the RP-US
Military Bases Agreement, the Mutual Defense Treaty and the
Military Assistance Program.
My dear Commissioner, when we enter into a treaty
and we are furnished the military hardware pursuant to
that treaty, it is not in control of our armed forces nor
control of our government. True indeed, we have military
officers trained in the U.S. armed forces school. This is part of
our Military Assistance Program, but it does not mean that the
minds of our military officers are for the U.S. government, no.
I am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people.
Also, while we are sending military officers to train or to
study in U.S. military schools, we are also sending our officers
to study in other military schools such as in Australia,
England and in Paris. So, it does not mean that when we send
military officers to United States schools or to other military
schools, we will be under the control of that country. We also
have foreign officers in our schools, we in the Command and
General Staff College in Fort Bonifacio and in our National
De-

452


fense College, also in Fort Bonifacio.377 (Emphases
supplied)

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

Furthermore, the constitutional policy of a “self-reliant and
independent national economy” does not necessarily rule out
the entry of foreign investments, goods and services. It
contemplates neither “economic seclusion” nor “mendicancy
in the international community.” As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of
this constitutional policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
overdependence on external assistance for even its most
basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the
freedom from undue foreign control of the national
economy, especially in such strategic industries as in the
development of natural resources and public utilities.378
(Emphases supplied)
The heart of the constitutional restriction on foreign military

facilities and bases is therefore the assertion of independence from
the U.S. and other foreign powers, as independence is exhibited by
the degree of foreign control exerted over these areas. The essence
of that independence is selfgovernance and self-control.379
Independence itself is “[t]he
_______________
377 Id., at pp. 240-241.

378 Tañada v. Angara, supra note 97.
379 Tydings-McDuffie Act, Section 10(a), Pub.L. 73-127, 48 Stat. 456 (enacted
24 March 1934).

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VOL. 779, JANUARY 12, 2016 453


state or condition of being free from dependence, subjection, or
control.”380
Petitioners assert that EDCA provides the U.S. extensive control
and authority over Philippine facilities and locations, such that the
agreement effectively violates Section 25 of the 1987
Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act
as necessary for “operational control and defense.” The term
“operational control” has led petitioners to regard U.S. control over
the Agreed Locations as unqualified and, therefore, total.382
Petitioners contend that the word “their” refers to the subject
“Agreed Locations.”
This argument misreads the text, which is quoted below:

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

A basic textual construction would show that the word “their,” as
understood above, is a possessive pronoun for the subject “they,” a
third-person personal pronoun in plural form. Thus, “their” cannot
be used for a nonpersonal subject such as “Agreed Locations.” The
simple grammatical conclusion is that “their” refers to the previous
third-person plural noun, which is “United States forces.” This
conclusion is in line with the definition of operational control.
_______________
380 Black’s Law Dictionary, p. 770 (6th ed., 1990). See also J. Carpio’s
Dissenting Opinion in Liban v. Gordon, 654 Phil. 680; 639 SCRA 709 (2011).
381 Memorandum of Saguisag, p. 56, Rollo (G.R. No. 212426), p. 594.
382 Id., at p. 596.

454


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

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

[t]he authority to perform those functions of command
over subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating objective,
and giving authoritative direction necessary to accomplish the
mission.383

At times, though, operational control can mean something
slightly different. In JUSMAG Philippines v. National Labor
Relations Commission, the Memorandum of Agreement between the
AFP and JUSMAG Philippines defined the term as follows:384
The term “Operational Control” includes, but is not limited

to, all personnel administrative actions, such as: hiring
recommendations; firing recommendations; position
classification; discipline; nomination and approval of
incentive awards; and payroll computation.

Clearly, traditional standards define “operational control” as
personnel control. Philippine law, for instance, deems operational
control as one exercised by police officers and civilian authorities
over their subordinates and is distinct from the administrative
control that they also exercise over police subordinates.385 Similarly,
a municipal mayor exercises operational control over the police
within the municipal govern-
_______________
383 Id., at p. 460.

384 G.R. No. 108813, 15 December 1994, 239 SCRA 224, 229.
385 R.A. No. 6975 — Department of the Interior and Local Government Act of
1990, Sec. 86; P.D. No. 531, Secs. 4, 5, and 6.

455
VOL. 779, JANUARY 12, 2016 455


ment,386 just as city mayor possesses the same power over the
police within the city government.387
Thus, the legal concept of operational control involves authority
over personnel in a commander-subordinate relationship and does
not include control over the Agreed Locations in this particular case.
Though not necessarily stated in EDCA provisions, this
interpretation is readily implied by the reference to the taking of
“appropriate measures to protect United States forces and United
States contractors.”
It is but logical, even necessary, for the U.S. to have operational
control over its own forces, in much the same way that the
Philippines exercises operational control over its own units.
For actual operations, EDCA is clear that any activity must be
planned and preapproved by the MDB-SEB.388 This provision
evinces the partnership aspect of EDCA, such that both stakeholders
have a say on how its provisions should be put into effect.
b. Operational control
vis-à-vis effective com-
mand and control.

Petitioners assert that beyond the concept of operational control
over personnel, qualifying access to the Agreed Locations by the
Philippine Designated Authority with the phrase “consistent with
operational safety and security requirements in accordance with
agreed procedures developed by the Parties” leads to the conclusion
that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession
of and control over a given
_______________
386 Local Government Code of 1991, Sec. 444.

387 Id., Sec. 455.
388 Rollo (G.R. No. 212426), pp. 515-525.
389 Id., at p. 597.

456


area, its representative should not have to be authorized by a
special provision.390
For these reasons, petitioners argue that the “operational control”
in EDCA is the “effective command and control” in the 1947
MBA.391 In their Memorandum, they distinguish effective command
and control from operational control in U.S. parlance.392 Citing the
Doctrine for the Armed Forces of the United States, Joint
Publication 1, “command and control (C2)” is defined as “the
exercise of authority and direction by a properly designated
commander over assigned and attached forces in the
accomplishment of the mission x x x.”393 Operational control, on the
other hand, refers to “[t]hose functions of command over assigned
forces involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the overall
control of assigned resources, and the full authoritative direction
necessary to accomplish the mission.”394
Two things demonstrate the errors in petitioners’ line of
argument.
Firstly, the phrase “consistent with operational safety and
security requirements in accordance with agreed procedures
developed by the Parties” does not add any qualification beyond that
which is already imposed by existing treaties. To recall, EDCA is
based upon prior treaties, namely the VFA and the MDT.395 Treaties
are in themselves contracts from which rights and obligations may
be claimed or waived.396
_______________
390 Id.
391 Id., at p. 598.
392 Id., at p. 599.
393 Id., footnote 76.
394 Id., footnote 77.
395 EDCA, preamble.
396 See: Bayan Muna v. Romulo, supra note 114; Bayan (Bagong Alyansang
Makabayan) v. Zamora, supra note 23; USAFFE Veterans Ass’n., Inc. v. Treasurer of
the Phil., supra note 173; Vienna Convention on the Law of the Treaties, Art. 27 (on
internal law and observance of

457
VOL. 779, JANUARY 12, 2016 457


In this particular case, the Philippines has already agreed to abide
by the security mechanisms that have long been in place between the
U.S. and the Philippines based on the implementation of their treaty
relations.397
Secondly, the full document cited by petitioners contradicts the
equation of “operational control” with “effective command and
control,” since it defines the terms quite differently, viz.:398

Command and control encompasses the exercise of
authority, responsibility, and direction by a commander over
assigned and attached forces to accomplish the mission.
Command at all levels is the art of motivating and directing
people and organizations into action to accomplish missions.
Control is inherent in command. To control is to manage and
direct forces and functions consistent with a commander’s
command authority. Control of forces and functions helps
commanders and staffs compute requirements, allocate means,
and integrate efforts. Mission command is the preferred
method of exercising C2. A complete discussion of tenets,
organization, and processes for effective C2 is provided in
Section B, “Command and Control of Joint Forces,” of
Chapter V “Joint Command and Control.”
treaties) in relation to Art. 46 (on provisions of internal law regarding competence

to conclude treaties).
397 “Under EDCA, before constructions and other activities can be undertaken,
prior consent of the Philippines will have to be secured through the Mutual Defense
Board (MDB) and Security Engagement Board (SEB) which were established under
the MDT and the VFA.” See Q&A on the Enhanced Defense Cooperation Agreement,
Official Gazette, available at <http://www.gov.ph/2014/04/28/qna-on-the-enhanced-
defense-cooperation-agreement> (last accessed 3 December 2015).
398 United States Department of Defense, Doctrine for the Armed Forces of the
United States: Joint Publication 1, Chaps. 1-18 (2013).

458


Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than
COCOM. It is the authority to perform those functions of
command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating
objectives, and giving authoritative direction over all aspects
of military operations and joint training necessary to
accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations;
normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON
provides authority to organize and employ commands and
forces as the commander considers necessary to accomplish
assigned missions. It does not include authoritative direction
for logistics or matters of administration, discipline, internal
organization, or unit training. These elements of COCOM
must be specifically delegated by the CCDR. OPCON does
include the authority to delineate functional responsibilities
and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of
combatant command, while command and control is the overall
power and responsibility exercised by the commander with reference
to a mission. Operational control is a narrower power and must be
given, while command and control is plenary and vested in a
commander. Operational control does not include the planning,
programming, budgeting, and execution process input; the
assignment of subordinate commanders; the building of
relationships with Department of Defense agencies; or the directive
authority for logistics, whereas these factors are included in the
concept of command and control.400
_______________
399 Id., at Chap. V-6.

400 Id., at Chap. V-2.

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VOL. 779, JANUARY 12, 2016 459


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

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

As petitioners assert, EDCA indeed contains a specific provision
that gives to the U.S. operational control within the Agreed
Locations during construction activities.401 This exercise of
operational control is premised upon the approval by the MDB and
the SEB of the construction activity through consultation and mutual
agreement on the requirements and standards of the construction,
alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be
emphasized that the grant is only for construction activities. The
narrow and limited instance wherein the U.S. is given operational
control within an Agreed Location cannot be equated with foreign
military control, which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of
construction activities, operational control over the Agreed Location
is vested in the Philippine authorities. This meaning is implicit in the
specific grant of operational control only during construction
activities. The principle of constitutional construction, “expressio
unius est exclusio alterius,” means the failure to mention the thing
becomes the ground for inferring that it was deliberately
excluded.403 Following this construc-
_______________

402 Id.
403 Sarmiento III v. Mison, supra note 177. The case also formulated this
principle as follows: “an express enumeration of subjects excludes others not
enumerated.”

460

tion, since EDCA mentions the existence of U.S. operational
control over the Agreed Locations for construction activities, then it
is quite logical to conclude that it is not exercised over other
activities.
Limited control does not violate the Constitution. The fear of the
commissioners was total control, to the point that the foreign
military forces might dictate the terms of their acts within the
Philippines.404 More important, limited control does not mean an
abdication or derogation of Philippine sovereignty and legal
jurisdiction over the Agreed Locations. It is more akin to the
extension of diplomatic courtesies and rights to diplomatic agents,405
which is a waiver of control on a limited scale and subject to the
terms of the treaty.
This point leads us to the second standard envisioned by the
framers of the Constitution: that the Philippines must retain
sovereignty and jurisdiction over its territory.

ii. Second standard: Philippine
sovereignty and applicable law

EDCA states in its Preamble the “understanding for the United
States not to establish a permanent military presence or base in the
territory of the Philippines.” Further on, it likewise states the
recognition that “all United States access to and use of facilities and
areas will be at the invitation of the Philippines and with full respect
for the Philippine Constitution and Philippine laws.”
The sensitivity of EDCA provisions to the laws of the Philippines
must be seen in light of Philippine sovereignty and jurisdiction over
the Agreed Locations.
_______________
404 Rebuttal of Commissioner Nolledo, supra note 362.

405 Vienna Convention on Diplomatic Relations, Arts. 31-40, 500 U.N.T.S. 95
(1961).

461
VOL. 779, JANUARY 12, 2016 461


Sovereignty is the possession of sovereign power,406 while
jurisdiction is the conferment by law of power and authority to apply
the law.407 Article I of the 1987 Constitution states:

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

From the text of EDCA itself, Agreed Locations are territories of
the Philippines that the U.S. forces are allowed to access and use.408
By withholding ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty over its territory.
That sovereignty exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for
security with respect to the Agreed Locations.410 Hence, Philippine
law remains in force therein, and it cannot be said that jurisdiction
has been transferred to the U.S. Even the previously discussed
necessary measures for operational control and defense over U.S.
forces must be coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal
regime of the MBA, Philippine laws continue to be
_______________
406 See Black’s Law Dictionary, p. 1523 (9th ed., 2009).

407 Id., at p. 927.
408 EDCA, Article I(1)(b).
409 Laurel v. Misa, 77 Phil. 856 (1947).
410 EDCA, Art. VI(2).
411 Id., Art. VI(3).

462


in force within the bases.412 The difference between then and
now is that EDCA retains the primary jurisdiction of the Philippines
over the security of the Agreed Locations, an important provision
that gives it actual control over those locations. Previously, it was
the provost marshal of the U.S. who kept the peace and enforced
Philippine law in the bases. In this instance, Philippine forces act as
peace officers, in stark contrast to the 1947 MBA provisions on
jurisdiction.413

iii. Third standard: must re-
spect national security and
territorial integrity

The last standard this Court must set is that the EDCA provisions
on the Agreed Locations must not impair or threaten the national
security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution
of technology has essentially rendered the prior notion of permanent
military bases obsolete.
Moreover, military bases established within the territory of
another state is no longer viable because of the alternatives offered
by new means and weapons of warfare such as nuclear weapons,
guided missiles as well as huge sea vessels that can stay afloat in the
sea even for months and years without returning to their home
country. These military warships are actually used as substitutes for
a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to
a land-based military headquarters.414
_______________
412 Liwanag v. Hamill, 98 Phil. 437 (1956).

413 1947 MBA, Art. XIII.

463
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The VFA serves as the basis for the entry of U.S. troops in a
limited scope. It does not allow, for instance, the reestablishment of
the Subic military base or the Clark Air Field as U.S. military
reservations. In this context, therefore, this Court has interpreted the
restrictions on foreign bases, troops, or facilities as three
independent restrictions. In accord with this interpretation, each
restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to
define what a military base is.415 While the source is not
authoritative, petitioners make the point that the Agreed Locations,
by granting access and use to U.S. forces and contractors, are U.S.
bases under a different name.416 More important, they claim that the
Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is
not in the realm of law, but of politics and policy. At the very least,
we can say that under international law, EDCA does not provide a
legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the
Agreed Locations simply because of the presence of U.S. personnel.
Article 2(4) of the United Nations Charter states that “All Members
shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the
United Nations.”418 Any unlawful attack on the Philippines breaches
the treaty, and triggers Article 51 of the same charter, which
_______________
415 Memorandum of Saguisag, p. 72, Rollo (G.R. No. 212426), p. 610.

416 Id.
417 Id.
418 Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI.

464


guarantees the inherent right of individual or collective self-
defence.
Moreover, even if the lawfulness of the attack were not in
question, international humanitarian law standards prevent
participants in an armed conflict from targeting nonparticipants.
International humanitarian law, which is the branch of international
law applicable to armed conflict, expressly limits allowable military
conduct exhibited by forces of a participant in an armed conflict.419
Under this legal regime, participants to an armed conflict are held to
specific standards of conduct that require them to distinguish
between combatants and noncombatants,420 as embodied by the
Geneva Conventions and their Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of
international law at the University of Leicester, noted that there is no
legal consensus for what constitutes a base, as opposed to other
terms such as “facilities” or “installation.”422 In strategic literature,
“base” is defined as an installation
_______________
419 Protocol Additional to the Geneva Conventions of 12 August 1949, and

relating to the Protection of Victims of International Armed Conflicts (Protocol I),
1125 U.N.T.S. 3 (1977) [hereinafter Geneva Convention Additional Protocol I];
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125
U.N.T.S. 609 (1977).
420 Articles 48, 51(2) and 52(2), Protocol I, id.
421 1949 Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31;
1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85;
1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12
August 1949, 75 U.N.T.S. 135; 1949 Geneva Convention (IV) Relative to the
Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287; id.
422 Woodcliffe, John, The Peacetime Use of Foreign Military Installations Under
Modern International Law, p. 30 (1992).

465
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“over which the user State has a right to exclusive control in an
extraterritorial sense.”423 Since this definition would exclude most
foreign military installations, a more important distinction must be
made.
For Woodcliffe, a type of installation excluded from the
definition of “base” is one that does not fulfill a combat role. He
cites an example of the use of the territory of a state for training
purposes, such as to obtain experience in local geography and
climactic conditions or to carry out joint exercises.424 Another
example given is an advanced communications technology
installation for purposes of information gathering and
communication.425 Unsurprisingly, he deems these noncombat uses
as borderline situations that would be excluded from the functional
understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status
of a building or person is presumed to be protected, unless proven
otherwise.427 Moreover, the principle of distinction requires
combatants in an armed conflict to distinguish between lawful
targets428 and protected targets.429 In an actual armed conflict
between the U.S. and a third state, the Agreed Locations cannot be
considered U.S. territory, since ownership of territory even in times
of armed conflict does not change.430
Hence, any armed attack by forces of a third state against an
Agreed Location can only be legitimate under interna-
_______________
423 Id.
424 Id., at p. 32.
425 Id.
426 Id.
427 Henckaerts, Jean-Marie and Ooswald-Beck, Louise, Customary International
Humanitarian Law-Volume I: Rules, pp. 34-36 (2005)
428 Art. 52, Protocol I, supra note 419.
429 Art. 48, id.
430 Art. 4, id.

466


tional humanitarian law if it is against a bona fide U.S. military
base, facility, or installation that directly contributes to the military
effort of the U.S. Moreover, the third state’s forces must take all
measures to ensure that they have complied with the principle of
distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under
international law that would ensure its territorial integrity and
national security in the event an Agreed Location is subjected to
attack. As EDCA stands, it does not create the situation so feared by
petitioners — one in which the Philippines, while not participating
in an armed conflict, would be legitimately targeted by an enemy of
the U.S.431
In the second place, this is a policy question about the wisdom of
allowing the presence of U.S. personnel within our territory and is
therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to “agreed”
locations, areas, or facilities within the military base of another
sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense
cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
_______________
431 Memorandum of Saguisag, pp. 66-70, Rollo (G.R. No. 212426), pp. 604-608.
432 Article 11(6) thereof provides: “Agreed facilities and areas” means the state
owned facilities and areas in the territory of the Republic of Bulgaria listed in Annex
A, and such other state owned facilities and areas, as may be mutually agreed by
the Parties.
433 Article I(g) thereof provides: “Agreed facilities and locations” means those
sites, installations, and infrastructure to which the United States is authorized
access and use by Colombia in

467
VOL. 779, JANUARY 12, 2016 467


3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation
Agreement436

In all of these arrangements, the host state grants U.S. forces
access to their military bases.437 That access is without rental or
similar costs to the U.S.438 Further, U.S. forces are
_______________
connection with activities carried out within the framework of this

Agreement.
434 Article 2(i) thereof provides: “Agreed facilities and areas” shall mean areas,
facilities, buildings or structures in the territory of the Republic of Poland, owned
by the Republic of Poland, and used by United States forces with the consent of the
Republic of Poland.
435 Article I thereof provides: “Agreed Facilities and Areas” means the
facilities and areas in the territory of Australia provided by Australia which may
be listed in Annex A appended to this Agreement, and such other facilities and
areas in the territory of Australia as may be provided by Australia in the future, to
which United States Forces, United States Contractors, dependants, and other
United States Government personnel as mutually agreed, shall have the right to
access and use pursuant to this Agreement.
436 Article I(7) thereof provides: “Agreed facilities and areas” means the
facilities and areas in the territory of Afghanistan provided by Afghanistan at
the locations listed in Annex A, and such other facilities and areas in the territory
of Afghanistan as may be provided by Afghanistan in the future, to which United
States forces, United States contractors, United States contractor employees, and
others as mutually agreed, shall have the right to access and use pursuant to this
Agreement.
437 US-Bulgaria Defense Cooperation Agreement, Arts. II(6) & IV(1); US-
Colombia Defense Cooperation Agreement, Art. IV; US-Poland Status of Forces
Agreement, Art. 3(2); US-Australia Force Posture Agreement, Arts. I, IV.
438 US-Bulgaria Defense Cooperation Agreement, Art. IV(5); US-Colombia
Defense Cooperation Agreement, Art. IV; US-Poland

468


allowed to undertake construction activities in, and make
alterations and improvements to, the agreed locations, facilities, or
areas.439 As in EDCA, the host states retain ownership and
jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific
military-related rights to the U.S. For example, under Article IV(1)
of the U.S.-Bulgaria Defense Cooperation Agreement, “the United
States forces x x x are authorized access to and may use agreed
facilities and areas x x x for staging and deploying of forces and
materiel, with the purpose of conducting x x x contingency
operations and other missions, including those undertaken in the
framework of the North Atlantic Treaty.” In some of these
agreements, host countries allow U.S. forces to construct facilities
for the latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is
nothing new. In Lim v. Executive Secretary, the Court already upheld
the Terms of Reference of Balikatan 02-1, which authorized U.S.
forces to set up “[t]emporary structures such as those for troop
billeting, classroom instruction and messing x x x during the
Exercise.” Similar provisions are also in the Mutual Logistics
Support Agreement of 2002 and
_______________
Status of Forces Agreement, Art. 3(1); US-Australia Force Posture Agreement,

Art. IV(7).
Defense Cooperation Agreement, Arts. IV(7), XI; US-Poland Status of Forces
Agreement, Art. 3(6); US-Australia Force Posture Agreement, Art. IV(8).
440 US-Bulgaria Defense Cooperation Agreement, Arts. II(6), IV(1) & VI(1);
US-Colombia Defense Cooperation Agreement, Art. IV(6); US-Poland Status of
Forces Agreement, Art. 4(1); US-Australia Force Posture Agreement, Art. XIV(1).
Defense Cooperation Agreement, Art. IV(4); US-Poland Status of Forces Agreement,
Art. 3(10); US-Australia Force Posture Agreement, Art. X(2).

469
VOL. 779, JANUARY 12, 2016 469


2007, which are essentially executive agreements that implement
the VFA, the MDT, and the 1953 Military Assistance Agreement.
These executive agreements similarly tackle the “reciprocal
provision of logistic support, supplies, and services,”442 which
include “[b]illeting, x x x operations support (and construction and
use of temporary structures incident to operations support), training
services, x x x storage services, x x x during an approved
activity.”443 These logistic supplies, support, and services include
temporary use of “nonlethal items of military equipment which are
not designated as significant military equipment on the U.S.
Munitions List, during an approved activity.”444 The first Mutual
Logistics Support Agreement has lapsed, while the second one has
been extended until 2017 without any formal objection before this
Court from the Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are
analogous to those in the aforementioned executive agreements.
Instead of authorizing the building of temporary structures as
previous agreements have done, EDCA authorizes the U.S. to build
permanent structures or alter or improve existing ones for, and to be
owned by, the Philippines.445 EDCA is clear that the Philippines
retains ownership of altered or improved facilities and newly
constructed permanent or non-relocatable structures.446 Under
EDCA, U.S. forces will also be allowed to use facilities and areas
for “training; x x x; support and related activities; x x x; temporary
accommodation of personnel; communications” and agreed
activities.447
Concerns on national security problems that arise from foreign
military equipment being present in the Philippines must likewise be
contextualized. Most significantly, the VFA
_______________
442 2002 MLSA, Art. III(2); 2007 MLSA, Art. III(2).

443 Id., Art. IV(1)(a)(2); id., Art. IV(1)(a)(2).
445 EDCA, Art. V(1).
446 Id., Art. V(2).
447 Id., Art. III(1).

470


already authorizes the presence of U.S. military equipment in
the country. Article VII of the VFA already authorizes the U.S. to
import into or acquire in the Philippines “equipment, materials,
supplies, and other property” that will be used “in connection with
activities” contemplated therein. The same section also recognizes
that “[t]itle to such property shall remain” with the US and that they
have the discretion to “remove such property from the Philippines at
any time.”
There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of “defense equipment, supplies, and
materiel,”448 since these are sanctioned in the VFA. In fact, the two
countries have already entered into various implementing
agreements in the past that are comparable to the present one. The
Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces
“may share x x x in the use of their resources, equipment and other
assets.” Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services,
including the “construction and use of temporary structures incident
to operations support” and “storage services” during approved
activities.449 These logistic supplies, support, and services include
the “temporary use of x x x nonlethal items of military equipment
which are not designated as significant military equipment on the
U.S. Munitions List, during an approved activity.”450 Those
activities include “combined exercises and training, operations and
other deployments” and “cooperative efforts, such as humanitarian
assistance, disaster relief and rescue operations, and maritime anti-
pollution operations” within or outside Philippine territory.451 Under
EDCA, the equipment, supplies, and materiel that will be
prepositioned at Agreed
_______________
448 Id., Art. IV(1).

449 2002 MLSA, Art. IV(1)(a)(2); 2007 MLSA, Art. IV(1)(a)(2).
451 Id., Art. III(1); id., Art. III(1).

471
VOL. 779, JANUARY 12, 2016 471


Locations include “humanitarian assistance and disaster relief
equipment, supplies, and materiel.”452 Nuclear weapons are
specifically excluded from the materiel that will be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it
increases the threat to our national security. If anything, EDCA
increases the likelihood that, in an event requiring a defensive
response, the Philippines will be prepared alongside the U.S. to
defend its islands and insure its territorial integrity pursuant to a
relationship built on the MDT and VFA.

8. Others issues and
concerns raised

A point was raised during the oral arguments that the language of
the MDT only refers to mutual help and defense in the Pacific
area.453 We believe that any discussion of the activities to be
undertaken under EDCA vis-à-vis the defense of areas beyond the
Pacific is premature. We note that a proper petition on that issue
must be filed before we rule thereon. We also note that none of the
petitions or memoranda has attempted to discuss this issue, except
only to theorize that the U.S. will not come to our aid in the event of
an attack outside of the Pacific. This is a matter of policy and is
beyond the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say
that the initial impression of the facility adverted to does appear to
be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the
Constitution. As respondents submit, however, the system referred
to in the agreement does not provide telecommunica-
_______________

453 MDT, Arts. III, IV, and V.

472


tions services to the public for compensation.454 It is clear from
Article VII(2) of EDCA that the telecommunication system is solely
for the use of the U.S. and not the public in general, and that this
system will not interfere with that which local operators use.
Consequently, a public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons
within Philippine territory is entirely speculative. It is noteworthy
that the agreement in fact specifies that the prepositioned materiel
shall not include nuclear weapons.455 Petitioners argue that only
prepositioned nuclear weapons are prohibited by EDCA; and that,
therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.456 The general prohibition on nuclear weapons,
whether prepositioned or not, is already expressed in the 1987
Constitution.457 It would be unnecessary or superfluous to include all
prohibitions already in the Constitution or in the law through a
document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption,
which under the law must originate from Congress. This allegation
ignores jurisprudence on the government’s assumption of tax
liability. EDCA simply states that the taxes on the use of water,
electricity, and public utilities are for the account of the Philippine
Government.458 This provision creates a situation in which a
contracting party assumes the tax liability of the other.459 In
National Power Corporation v. Province of Quezon, we
distinguished between enforceable and unenforceable stipulations on
the assumption of tax liability. Afterwards, we concluded that an
enforceable assumption of
_______________
454 Rollo, p. 464.

456 Rollo, pp. 34-35.
457 Article II, Sec. 8.
458 EDCA, Art. VII(1).
459 National Power Corporation v. Province of Quezon, 610 Phil. 456; 593
SCRA 47 (2009).

473
VOL. 779, JANUARY 12, 2016 473


tax liability requires the party assuming the liability to have
actual interest in the property taxed.460 This rule applies to EDCA,
since the Philippine Government stands to benefit not only from the
structures to be built thereon or improved, but also from the joint
training with U.S. forces, disaster preparation, and the preferential
use of Philippine suppliers.461 Hence, the provision on the
assumption of tax liability does not constitute a tax exemption as
petitioners have posited.
Additional issues were raised by petitioners, all relating
principally to provisions already sufficiently addressed above. This
Court takes this occasion to emphasize that the agreement has been
construed herein as to absolutely disauthorize the violation of the
Constitution or any applicable statute. On the contrary, the
applicability of Philippine law is explicit in EDCA.

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so
zealously protested by noted personalities in Philippine history
arises not so much from xenophobia, but from a genuine desire for
self-determination, nationalism, and above all a commitment to
ensure the independence of the Philippine Republic from any
foreign domination.
Mere fears, however, cannot curtail the exercise by the President
of the Philippines of his Constitutional prerogatives in respect of
foreign affairs. They cannot cripple him when he deems that
additional security measures are made necessary by the times. As it
stands, the Philippines through the Department of Foreign Affairs
has filed several diplomatic protests against the actions of the
People’s Republic of China in
_______________
460 Id.
461 EDCA, Art. III(6); Art. IV(2); Art. V(1, 4); Art. VIII(2).

474


the West Philippine Sea;462 initiated arbitration against that
country under the United Nations Convention on the Law of the
Sea;463 is in the process of negotiations with the Moro Islamic
Liberation Front for peace in Southern Philippines,464 which is the
subject of a current case before this Court; and faces increasing
incidents of kidnappings of Filipinos and foreigners allegedly by the
Abu Sayyaf or the New People’s Army.465 The Philippine military is
conducting reforms that seek to ensure the security and safety of the
nation in the years to come.466 In the future, the Philippines must
navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing
asymmetric warfare and remote weapons.
_______________
462 Statement of Secretary Albert del Rosario before the Permanent Court of
Arbitration, Peace Palace, The Hague, Netherlands, 7 July 2015, Official Gazette,
available at <http://www.gov.ph/2015/07/07/statement-of-secretary-albert-del-rosario-
before-the-permanent-court-of-arbitration-peace-palace-the-hague-netherlands/> (last
visited 3 December 2015); Statement on Recent Incidents in the Philippines’ Baja de
Masinloc, 4 February 2015, Department of Foreign Affairs, available at
<http://www.dfa.gov.ph/index.php/newsroom/dfa-releases/5337-statement-on-recent-
incidents-in-the-philippines-bajo-de-masinloc> (last visited 21 October 2015).
463 The Republic of the Philippines v. The People’s Republic ofChina, Case No.
2013-19 (Perm Ct. Arb.) <http://www.pcacases.com/web/view/7> (last visited 13
October 2015).
464 Comprehensive Agreement on the Bangsamoro, Official Gazette, available at
<http://www.gov.ph/2014/03/27/document-cab> (last visited 21 October 2015).
465 Lim, Frinston, Authorities believe Abu Sayyaf behind abduction of Filipina, 3
foreigners, 22 September 2015, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/128739/authorities-believe-npa-behind-abduction-of-
filipina-foreigners> (last visited 3 December 2015).
466 Republic Act No. 10349 (2012); The Philippine Navy, Picture of the Future:
The Philippine Navy Briefer, available at
<http://www.navy.mil.ph/downloads/THE%20PHILIPPINE%20NAVY%20BRIEFER.pdf>
(last visited 3 December 2015).

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Additionally, our country is fighting a most terrifying enemy: the
backlash of Mother Nature. The Philippines is one of the countries
most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical cyclone Yolanda
(internationally named Haiyan), one of the most devastating forces
of nature the world has ever seen hit the Philippines on 8 November
2013 and killed at least 6,000 people.467 This necessitated a massive
rehabilitation project.468 In the aftermath, the U.S. military was
among the first to extend help and support to the Philippines.
That calamity brought out the best in the Filipinos as thousands
upon thousands volunteered their help, their wealth, and their
prayers to those affected. It also brought to the fore the value of
having friends in the international community.
In order to keep the peace in its archipelago in this region of the
world, and to sustain itself at the same time against the destructive
forces of nature, the Philippines will need friends. Who they are, and
what form the friendships will take, are for the President to decide.
The only restriction is what the Constitution itself expressly
prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was
what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive
agreement, it remains consistent with existing laws and treaties that
it purports to implement.
WHEREFORE, we hereby DISMISS the petitions.
SO ORDERED.
_______________
467 Locsin, Joel, NDRRMC: Yolanda death toll hits 6,300 mark nearly 6 months
after typhoon, 17 April 2014, GMA News Online
<http://www.gmanetwork.com/news/story/357322/news/nation/ndrrmc-yolanda-
death-toll-hits-6-300-mark-nearly-6-months-after-typhoon> (last accessed 3
December 2015).
468 Typhoon Yolanda, Official Gazette, available at <http://www.gov.ph/crisis-
response/updates-typhoon-yolanda/> (last visited 3 December 2015).

476
Velasco, Jr., Del Castillo, Villarama, Jr., Perez, Mendoza and

Reyes, JJ., concur.
Carpio, J., See Separate Concurring Opinion.
Leonardo-De Castro, J., I dissent: See my Dissenting Opinion.
Brion, J., I dissent: See my Dissenting Opinion.
Peralta, J., I join J. Carpio’s Opinion.
Bersamin, J., I join the Separate Concurring Opinion of J.
Carpio.
Perlas-Bernabe, J., I join the Dissenting Opinions.
Leonen, J., I dissent. See Separate Opinion.
Jardeleza, J., No part.

SEPARATE CONCURRING OPINION
CARPIO, J.:

The threshold issue in this case is whether the Enhanced Defense
Cooperation Agreement (EDCA) merely implements the existing
and ratified 1951 Mutual Defense Treaty1 (MDT), or whether the
EDCA is a new treaty requiring Senate ratification to take effect.
The answer to this question turns on whether, under present
circumstances, the attainment of the purpose of the MDT requires
the EDCA. The fundamental rule in treaty interpretation is that a
treaty must be interpreted “in the light of its object and purpose.”2
_______________
1 The Philippine Senate ratified the MDT on 12 May 1952 under Senate
Resolution No. 84.
2 Article 31 of the 1969 Vienna Convention on the Law of Treaties (Vienna
Convention) provides:

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As stated in the MDT, the purpose of the United States (U.S.) and
the Philippines in forging the MDT is to “declare publicly and
formally their sense of unity and their common determination to
defend themselves against external armed attack.” If the MDT
cannot attain this purpose without the EDCA, then the EDCA
merely implements the MDT and Executive action is sufficient to
make the EDCA valid.
A ratified treaty like the MDT must be interpreted to allow the
Executive to take all necessary measures to insure that the treaty’s
purpose is attained. A ratified treaty cannot be interpreted to require
a second ratified treaty to implement the first ratified treaty, as a
fundamental rule is that a treaty must be interpreted to avoid a
“result which is manifestly absurd or unreasonable.”3 This is
particularly true to a mu-
_______________
Article 31
General rule of interpretation
1. 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 the light of its
object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
x x x. (Emphasis supplied)
The Philippines acceded to the Vienna Convention on 15 November 1972.
3 Article 32 of the 1969 Vienna Convention on the Law of Treaties provides:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of Article 31, or to determine the
meaning when the interpretation according to Article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or
unreasonable. (Emphasis supplied)

478


tual defense treaty the purpose of which is mutual self-defense
against sudden armed attack by a third state.
However, if the MDT can attain its purpose without the EDCA,
then the EDCA is a separate treaty that requires Senate ratification. I
shall discuss why, under present circumstances, the EDCA is
absolutely necessary and essential to attain the purpose of the MDT.
With the departure in 1992 of U.S. military forces from Subic
Naval Base and Clark Air Base in Luzon, a power vacuum resulted
in the South China Sea. As in any power vacuum, the next power
would rush in to fill the vacuum. Thus, China, the next power after
the U.S., filled the power vacuum in the South China Sea, which
includes the West Philippine Sea.4
In early 1995, barely three years after the departure of U.S.
military forces from the Philippines, China seized Mischief Reef
from the Philippines. There was no power to deter China as the U.S.
forces had left. The Philippines did not anticipate that China would
rush in to fill the power vacuum, or if the Philippines anticipated
this, it did not upgrade its military to deter any Chinese aggression.
After China seized Mischief Reef in 1995, the Philippines still did
not upgrade its military, particularly its navy.
In 2012, China seized Scarborough Shoal from the Philippines,
which could offer no armed resistance to Chinese naval forces. The
Scarborough Shoal seizure finally made the Philippine Government
realize that there was an absolute need to deter China’s creeping
invasion of Philippine islands, rocks and reefs in the West Philippine
Sea. Thus, the Philippines rushed the modernization of its navy and
air force. The Philippines also agreed with the U.S. to use the MDT
to preposition U.S. war materials in strategic locations in the Philip-
_______________
4 See Administrative Order No. 29, 5 September 2012.

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VOL. 779, JANUARY 12, 2016 479


pines, particularly in the islands of Palawan and Luzon facing the
West Philippine Sea.
In modern warfare, the successful implementation of a mutual
defense treaty requires the strategic prepositioning of war materials.
Before the advent of guided missiles and drones, wars could take
months or even years to prosecute. There was plenty of time to
conscript and train soldiers, manufacture guns and artillery, and ship
war materials to strategic locations even after the war had started.
Today, wars could be won or lost in the first few weeks or even first
few days after the initial outbreak of war.
In modern warfare, the prepositioning of war materials, like
mobile anti-ship and anti-aircraft missiles, is absolutely necessary
and essential to a successful defense against armed aggression,
particularly for a coastal state like the Philippines. This is what the
EDCA is all about — the prepositioning in strategic locations of war
materials to successfully resist any armed aggression. Such
prepositioning will also publicly telegraph to the enemy that any
armed aggression would be repelled. The enemy must know that we
possess the capability, that is, the war materials, to defend the
country against armed aggression. Otherwise, without such
capability, we telegraph to the enemy that further seizure of
Philippine islands, rocks and reefs in the South China Sea would be
a walk in the park, just like China’s seizure of Mischief Reef and
Scarborough Shoal. Without such capability, we would practically
be inviting the enemy to seize whatever Philippine island, rock or
reef it desires to seize in the West Philippine Sea.
Since 2014, China has started building artificial islands in the
Spratlys out of submerged areas like Mischief Reef and Subi Reef,
or out of rocks that barely protrude above water at high tide like
Fiery Cross Reef. China has so far created a 590-hectare artificial
island in Mischief Reef which is only 125 nautical miles (NM) from
Palawan, well within the Philippines’ Exclusive Economic Zone
(EEZ). In comparison, San Juan City is 595 hectares in area. China
has built a 390-

480


hectare artificial island in Subi Reef, outside the Philippines’
EEZ but within its Extended Continental Shelf (ECS). China has
created a 265-hectare artificial island in Fiery Cross Reef, outside
the Philippines’ EEZ but within its ECS.
China claims that its island-building activities are for civilian
purposes but the configuration of these artificial islands shows
otherwise. The configuration of China’s Mischief Reef island, which
is China’s largest artificial island in the Spratlys, is that of a
combined air and naval base, with a 3,000meter airstrip.5 The
configuration of China’s Subi Reef island is that of a naval base with
a 3,000-meter airstrip. The configuration of China’s Fiery Cross
Reef island is that of an airbase with a 3,000-meter airstrip and a
harbor for warships. These three air and naval bases form a triangle
in the Spratlys, surrounding the islands occupied by the
Philippines.
Mischief Reef, located mid-way between Palawan and Pagasa, is
ideally situated to block Philippine ships resupplying Pagasa, the
largest Philippine-occupied island in the Spratlys. Mischief Reef is
also close to the gas-rich Reed Bank, the gas field that should
replace Malampaya once Malampaya runs out of gas in 10 to 12
years. Malampaya supplies 40% of the energy requirement of
Luzon. The Reed Bank and Malampaya are well within the
Philippines’ EEZ. However, China’s 9-dashed lines enclose entirely
the Reed Bank and encroach partly on Malampaya.
It is obvious that China will use the three air and naval bases in
its artificial islands to prevent Philippine ships and planes from
resupplying Philippine-occupied islands in the Spratlys, forcing the
Philippines to abandon its occupied islands. Already, Chinese coast
guard vessels are preventing medium-sized Philippine ships from
resupplying the BRP Sierra Madre, the dilapidated Philippine
landing ship beached
_______________
5 A 3,000-meter airstrip is long enough for any military aircraft of China to land
and take off. A Boeing 747 airliner, or a B52 bomber, can easily land and take off on
a 3,000-meter airstrip.

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in Ayungin Shoal, just 20 NM from Mischief Reef. Only the
Philippines’ use of small watercrafts enables the resupply to the
BRP Sierra Madre, which is manned by about a dozen Philippine
marine soldiers. The Philippines’ small watercrafts can navigate the
shallow waters of Ayungin Shoal while China’s large coast guard
vessels cannot.
With the anticipated installation by China of military facilities
and war materials in its three air and naval bases in the Spratlys,
expected to be completed before the end of 2016, China will begin
to aggressively enforce its 9-dashed lines claim over the South
China Sea. Under this claim, China asserts sovereignty not only to
all the islands, rocks and reefs in the Spratlys, but also to 85.7% of
the South China Sea, comprising all the waters, fisheries, mineral
resources, seabed and submarine areas enclosed by the 9-dashed
lines. Under this claim, the Philippines will lose 381,000 square
kilometers6 of its EEZ in the West Philippine Sea, a maritime space
larger than the total Philippine land area of 300,000 square
kilometers. China’s 9-dashed lines claim encroaches on all the
traditional fishing grounds of Filipino fishermen in the South China
Sea: Scarborough Shoal, Macclesfield Bank and the Spratlys.
The Philippines, acting by itself, cannot hope to deter militarily
China from enforcing its 9-dashed lines claim in the West Philippine
Sea. The Philippines cannot acquire war materials like anti-ship and
anti-aircraft missiles off the shelf. The operation of anti-ship
missiles requires communications with airborne radar or satellite
guidance systems. With the completion of China’s air and naval
bases before the end of 2016, the Philippines has no time to acquire,
install and operate an anti-ship missile system on its own. Military
and security analysts are unanimous that there is only one
_______________
6 Final Transcript Day 1 — Merits Hearing, page 58, line 11, Philippines-China
Arbitration, http://www.pcacases.com/web/sendAttach/15487.

482


power on earth that can deter militarily China from enforcing its
9-dashed lines claim, and that power is the United States. This is
why the MDT is utterly crucial to the Philippines’ defense of its
EEZ in the West Philippine Sea.
Of course, the United States has repeatedly stated that the MDT
does not cover the disputed islands, rocks and reefs in the South
China Sea. We understand this because at the time the MDT was
signed the Philippine territory recognized by the United States did
not include the Kalayaan Island Group in the Spratlys. However, the
MDT provides that an armed attack on “public vessels or aircraft”
(military or coast guard ship or aircraft) of either the United States
or the Philippines in the Pacific area is one of the grounds for a party
to invoke mutual defense under the MDT.7 The United States has
officially clarified that the Pacific area includes the South China
Sea.8
If China’s navy ships attack a Philippine military ship re-
supplying Philippine-occupied islands in the Spratlys, that will be
covered by the MDT. However, unless the U.S. and the Philippines
have prepositioned anti-ship missiles in Palawan, there will be no
deterrence to China, and no swift response from U.S. and Philippine
forces. The absence of any deterrence will likely invite Chinese
harassment, or even armed attack, on Philippine resupply ships. That
will lead to the loss of all Philippine-occupied islands in the
Spratlys, as well as the loss of the gas-rich Reed Bank.
_______________
7 Article IV of the MDT provides: “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. x x x.”
8 Letter of U.S. Secretary of State Cyrus Vance to Philippine Secretary of Foreign
Affairs Carlos P. Romulo dated 6 January 1979; Letter of U.S. Ambassador to the
Philippines Thomas C. Hubbard to Foreign Secretary Domingo L. Siazon dated 24
May 1999.

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The prepositioning of war materials is a necessary and essential
element to achieve the purpose of the MDT. Article II of the MDT
expressly provides:

collective capacity to resist armed attack. (Emphasis
supplied)

The prepositioning of war materials is the very essence of the
phrase to “maintain and develop (the Parties’) individual and
collective capacity to resist armed attack.” Without the
prepositioning of war materials, a Party to the MDT cannot maintain
and develop the capacity to resist armed attack. Without the
prepositioning of war materials, a Party is simply and totally
unprepared for armed attack.
The 1987 Constitution defines the “national territory” to include
not only islands or rocks above water at high tide but also the
seabed, subsoil and other submarine areas “over which the
Philippines has sovereignty or jurisdiction.” Article 1 of the 1987
Constitution provides:

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

Thus, the Philippine “national territory” refers to areas over
which the Philippines has “sovereignty or jurisdiction.” The
Constitution mandates: “The State shall protect the nation’s marine
wealth in its archipelagic waters, territorial sea,

484


and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.”9
Under both customary international law and the 1982 United
Nations Convention on the Law of the Sea (UNCLOS), the
Philippines has “sovereign rights” and “jurisdiction”10 to exploit
exclusively all the living and nonliving resources within its EEZ.
Under the UNCLOS, the Philippines has the sovereign rights to
exploit exclusively the mineral resources
_______________
9 Section 2, Article XII of the 1987 Constitution. (Emphasis supplied)

10 Article 56 of UNCLOS provides:
Article 56
Rights, jurisdiction and duties of the coastal State
in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or nonliving, of the waters superjacent
to the seabed and of the seabed and its subsoil, and with regard to other activities for
the economic exploitation and exploration of the zone, such as the production of
energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention
with regard to:
(i) the establishment and use of artificial islands, installations and
structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, the coastal State shall have due regard to the rights and
duties of other States and shall act in a manner compatible with the provisions of this
Convention.
x x x x (Emphasis supplied)

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VOL. 779, JANUARY 12, 2016 485


within its ECS.11 Under the UNCLOS, the Philippines also has
sole “jurisdiction” to create artificial islands or install structures
within its EEZ12 and ECS.13
_______________
11 Article 77 of the UNCLOS provides:

Article 77
Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf sovereign rights for the
purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if the
coastal State does not explore the continental shelf or exploit its natural resources, no
one may undertake these activities without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on
occupation, effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and other
nonliving resources of the seabed and subsoil together with living organisms
belonging to sedentary species, that is to say, organisms which, at the harvestable
stage, either are immobile on or under the seabed or are unable to move except in
constant physical contact with the seabed or the subsoil. (Emphasis supplied)
Article 60
Artificial islands, installations and structures
in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the exclusive
right to construct and to authorize and regulate the construction, operation and
use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in Article 56 and
other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights
of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial
islands, installations and structures, in-

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In short, under international law and in particular under the
UNCLOS, the Philippines has jurisdiction over its EEZ and ECS.
Thus, under domestic law, the Philippines’ EEZ and ECS form part
of Philippine “national territory” since the Constitution defines
“national territory” to include areas over which the Philippines has
“jurisdiction,” a term which means less than sovereignty. However,
under international law, the Philippine “national territory” refers to
the areas over which the Philippines has sovereignty, referring to
the Philippines’ land territory, archipelagic waters and territorial sea,
excluding areas over which the Philippines exercises only
jurisdiction like its EEZ and ECS.
China has already invaded repeatedly Philippine “national
territory” in two separate areas, one in the Kalayaan Island Group in
the Spratlys and the other in Scarborough Shoal. When China seized
in 1988 Subi Reef, a submerged area within the Philippines’ ECS
and beyond the territorial sea of any high tide feature,14 China
invaded Philippine national territory as defined in the Constitution.
When China seized in 1995 Mischief Reef, a submerged area within
the Philippines’ EEZ and beyond the territorial sea of any high tide
feature,15 China invaded Philippine national territory as defined in
the Constitution. When China seized in 2012 Scarborough Shoal, a
_______________
cluding jurisdiction with regard to customs, fiscal, health, safety and immigration
laws and regulations.
x x x x (Emphasis supplied)
Article 80
Artificial islands, installations and structures
on the continental shelf
Article 60 applies mutatis mutandis to artificial islands, installations and structures
on the continental shelf.
14 Final Transcript Day 2 — Merits Hearing, page 23, lines 7, 8 and 9,
Philippines-China Arbitration, http://www.pcacases.com/web/
sendAttach/1548.
15 Id.

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VOL. 779, JANUARY 12, 2016 487


rock above water at high tide and constituting land territory under
international law, China invaded Philippine national territory as
defined in the Constitution and as understood in international law.
Republic Act No. 9522, amending the Philippine Baselines Law,
expressly declares that Scarborough Shoal is part of Philippine
territory over which the Philippines exercises “sovereignty and
jurisdiction.”16
After China’s seizure of Scarborough Shoal in 2012, the
Philippines finally woke up and summoned the political will to
address the serial and creeping Chinese invasion of Philippine
national territory. Thus, the EDCA was born, to give much needed
teeth to the MDT as a deterrent to further Chinese aggression in the
West Philippine Sea. Without the EDCA, the MDT remains a
toothless paper tiger. With the EDCA, the MDT acquires a real and
ready firepower to deter any armed aggression against Philippine
public vessels or aircrafts operating in the West Philippine Sea.
With the EDCA, China will think twice before attacking
Philippine military resupply ships to Philippine-occupied islands in
the Spratlys. With the EDCA, the Philippines will have a fighting
chance to hold on to Philippine-occupied islands in the Spratlys.
With the EDCA, China will think twice before attacking Philippine
navy and coast guard vessels patrolling the West Philippine Sea.
This will give the Philippines a fighting chance to ward off China’s
impending en-
_______________
16 Section 2 of RA No. 9522 provides: “The baseline in the following areas over
which the Philippines likewise exercises sovereignty and jurisdiction shall be
determined as ‘Regime of Islands’ under the Republic of the Philippines consistent
with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596; and
b) Bajo de Masinloc, also known as Scarborough Shoal.” (Emphasis
supplied)

488


forcement of its 9-dashed lines as China’s “national boundaries”
as shown in its 2013 official vertical map.17
The number and sites of the “agreed locations” to place the
prepositioned war materials must necessarily remain numerous and
anonymous. The “agreed locations” must be numerous enough to
survive repeated or surprise armed attacks. There must not only be
redundant “agreed locations” but also dummy “agreed locations” to
mislead the enemy. The sites of many of the “agreed locations”
cannot be disclosed publicly because that will give the enemy the
fixed coordinates of the “agreed locations,” making them easy
targets of long-range enemy cruise missiles. The number and sites of
the “agreed locations” are matters best left to the sound discretion of
the Executive, who is the implementing authority of the MDT for
the Philippines.
The implementation of the MDT is a purely Executive function
since the Senate has already ratified the MDT. The implementation
of the MDT is also part of the purely Executive function of the
President as Commander-in-Chief of the Armed Forces. As executor
and “chief architect”18 of the country’s relations with foreign
countries, including our treaty ally the United States, the President is
constitutionally vested with ample discretion in the implementation
of the MDT. EDCA, being essentially and entirely an
implementation of the MDT, is within the sole authority of the
President to enter into as an executive agreement with the U.S.
Article VIII of the MDT provides: “This Treaty shall remain in
force indefinitely. Either party may terminate it one year after notice
is given to the other Party.” Neither the Philippines nor the United
States has terminated the MDT. On the
_______________
17 In its Note Verbale of 7 June 2013 to China, the Philippines stated it “strongly
objects to the indication that the nine-dash lines are China’s national boundaries
in the West Philippine Sea/South China Sea.” (Emphasis supplied)
18 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303; 462 SCRA 622
(2005).

489
VOL. 779, JANUARY 12, 2016 489


contrary, the 1998 Visiting Forces Agreement between the
Philippines and the United States, which the Philippine Senate has
ratified, expressly states that the parties are “[r]eaffirming their
obligations under the Mutual Defense Treaty of August 30, 1951.”
Thus, the continued validity and relevance of the MDT cannot be
denied.
Moreover, the Senate ratification of the MDT complies with the
requirement of Section 25, Article XVII19 of the 1987 Constitution
that any agreement allowing foreign military facilities in the
Philippines, like the prepositioning of U.S. war materials, must be
embodied in a treaty and ratified by two-thirds vote20 of the Senate.
That treaty is the MDT which the Philippine Senate ratified by two-
thirds vote on 12 May 195221 and which the U.S. Senate ratified on
20 March 1952.22
_______________
19 Section 25, Article XVIII of the 1987 Constitution 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.” (Emphasis
supplied)
20 Section 21, Article VII of the 1987 Constitution provides: “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.” (Emphasis supplied)
21 The 1935 Constitution, under which the MDT was ratified, also required
ratification of treaties by two-thirds vote of the Senate. Section 10(7), Article VII of
the 1935 Constitution provides: “The President shall have the power, with the
concurrence of two-thirds of all the Members of the Senate, to make treaties, and
with the consent of the Commission on Appointments, he shall appoint ambassadors,
other public ministers; and consuls. He shall receive ambassadors and other public
ministers duly accredited to the Government of the Philippines.” (Emphasis supplied)
22 See footnote 7, Nicolas v. Romulo, 598 Phil. 262; 578 SCRA 438 (2009).

490


In summary, the EDCA is absolutely necessary and essential to
implement the purpose of the MDT, which on the part of the
Philippines, given the existing situation in the West Philippine Sea,
is to deter or repel any armed attack on Philippine territory or on any
Philippine public vessel or aircraft operating in the West Philippine
Sea. To hold that the EDCA cannot take effect without Senate
ratification is to render the MDT, our sole mutual self-defense treaty,
totally inutile to meet the grave, even existentialist,23 national
security threat that the Philippines is now facing in the West
Philippine Sea.
China has already invaded several geologic features
comprising part of Philippine “national territory” as defined in
the Constitution. The territorial integrity of the Philippines has
been violated openly and repeatedly. The President, as Commander-
in-Chief of the Armed Forces, “chief architect” of foreign policy and
implementer of the MDT, has decided on the urgent need to fortify
Philippine military defenses by prepositioning war materials of our
treaty ally on Philippine soil. This Court should not erect roadblocks
to the President’s implementation of the MDT, particularly since
time is of the essence and the President’s act of entering into the
EDCA on his own does not violate any provision of the
Constitution.
A final word. The EDCA does not detract from the legal
arbitration case that the Philippines has filed against China under
UNCLOS. The EDCA brings into the Philippine strategy the
element of credible self-defense. Having refused to participate in the
legal arbitration despite being obligated to do so under UNCLOS,
China is now using brute force to assert its claim to almost the entire
South China Sea. Given
_______________
23 China’s successful control of the South China Sea will force the Philippines to
share a 1,300-kilometer sea border with China, from Balabac Island in Palawan to
Yamin Island in Batanes, very close to the Philippine coastline facing the South China
Sea. This will bring the Philippines into China’s orbit, with the Philippines adhering
to China’s positions on matters involving foreign policy.

491
VOL. 779, JANUARY 12, 2016 491


this situation, the proper equation in defending the Philippines’
maritime zones in the West Philippine Sea is “legal right plus
credible self-defense equals might.”
Accordingly, I vote to DISMISS the petitions on the ground that
the EDCA merely implements, and in fact is absolutely necessary
and essential to the implementation of, the MDT, an existing treaty
that has been ratified by the Senate.

CONCURRING AND DISSENTING OPINION
LEONARDO-DE CASTRO, J.:

“The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it,
deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction,
and an investment of that sovereignty to the same extent in
that power which could impose such restriction.” x x x.1

I concur with the disposition of the procedural issues but not with
the arguments and conclusions reached as to the substantive issues.
The focus of the present controversy, as mentioned by the
Honorable Chief Justice is the application of Section 25, Article
XVIII of the Constitution which reads:

ARTICLE XVIII
TRANSITORY PROVISIONS
SEC. 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and
_______________
1 The Schooner Exchange v. McFaddon and Others, 3 Law. ed., 287, 293; cited in
Dizon v. Commanding General of the Phil. Ryukus Command, U.S. Army, 81 Phil.
286, 292 (1948).

492


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

Section 25, Article XVIII bans foreign military bases, troops, or
facilities in Philippine territory, unless the following requisites are
complied with: (1) the presence of foreign military bases, troops, or
facilities should be allowed by a treaty; (2) the treaty must be duly
concurred in by the Philippine Senate and, when Congress so
requires, such treaty should be ratified by a majority of the votes cast
by the Filipino people in a national referendum held for that
purpose; and (3) such treaty should be recognized as a treaty by
the other contracting party.2
Couched in negative terms, Section 25, Article XVIII embodies a
prohibition: “foreign military bases, troops, or facilities shall not be
allowed in the Philippines,” unless the requisites in the said section
are met.
In BAYAN v. Zamora,3 the Court held that Section 25, Article
XVIII covers three different situations: a treaty allowing the
presence within the Philippines of (a) foreign military bases, or (b)
foreign military troops, or (c) foreign military facilities, such that a
treaty that involves any of these three standing alone falls within the
coverage of the said provision.
BAYAN v. Zamora likewise expounded on the coverage of the two
provisions of the Constitution — Section 21, Article VII and Section
25, Article XVIII — which both require Senate concurrence in
treaties and international agreements. The Court stated:
_______________
2 BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655;

342 SCRA 449, 486 (2000).
3 Id., at p. 653; p. 482.

493
VOL. 779, JANUARY 12, 2016 493


Section 21, Article VII deals with treaties 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 treaties 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 treaties 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.
x x x x
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 hermeneutics that when no
distinction is made by law the Court should not distin-
_______________
2 BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655;

342 SCRA 449, 486 (2000).
3 Id., at p. 653; p. 482.

494


guish — 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, 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.

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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.4 (Citations omitted)

Furthermore, the wording of Section 25, Article XVIII also
provides an indubitable implication: foreign military bases, troops
and facilities have ceased to be allowed in the Philippines after
the expiration in 1991 of the Military Bases Agreement;
thereafter, the same can only be reallowed upon the satisfaction
of all the three requirements set forth in the Section 25, Article
XVIII.
The legal consequence of the above provision with respect to the
Military Bases Agreement (March 14, 1947), the Mutual Defense
Treaty (August 30, 1951), the Visiting Forces Agreement (February
10, 1998), and the Enhanced Defense Cooperation Agreement
([EDCA] April 28, 2014) can be appreciated by an examination of
the respective rights and obligations of the parties in these
agreements.
Effect of Section 25, Article XVIII

of the Constitution on the Military
Bases Agreement, the Mutual De-
fense Treaty, the Visiting Forces
Agreement, and the Enhanced
Defense Cooperation Agreement

On July 4, 1946, the United States recognized the independence
of the Republic of the Philippines, thereby apparently relinquishing
any claim of sovereignty thereto. However, on March 14, 1947, the
Philippines and the United
_______________
4 Id., at pp. 650-654; pp. 482-485.

496


States entered into a Military Bases Agreement (MBA) which
granted to the United States government the right to retain5 the use
of the bases listed in the Annexes of said agreement.6 Within said
bases, the United States was granted
_______________
5 The Court explained in Nicolas v. Romulo (598 Phil. 262, 279-280; 578 SCRA
438, 456 [2009]) that:
“[U]nder 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.
x x x x
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.”
6 Military Bases Agreement (March 14, 1947), Article I, which provides:
Article I
GRANT OF BASES
1. The Government of the Republic of the Philippines (hereinafter referred to as
the Philippines) grants to the Government of the United States of America
(hereinafter referred to as the United States) the right to retain the use of the bases in
the Philippines listed in Annex A attached hereto.
2. The Philippines agrees to permit the United States, upon notice to the
Philippines, to use such of those bases listed in Annex B as the United States
determines to be required by military necessity.
3. The Philippines agrees to enter into negotiations with the United States at the
latter’s request, to permit the United States to expand such bases, to exchange such
bases for other bases, to acquire additional bases, or relinquish rights to bases, as any
of such exigencies may be required by military necessity.

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“the rights, power and authority within the bases which are
necessary for the establishment, use, operation and defense thereof
or appropriate for the control thereof and all the rights, power and
authority within the limits of territorial waters and air space adjacent
to, or in the vicinity of, the bases which are necessary to provide
access to them, or appropriate for their control.”7 The term of the
original agreement was “for a period of ninety-nine years subject to
extension thereafter as agreed by the two Governments.”8 In 1966,
the parties entered into the Ramos-Rusk Agreement, which reduced
the term of the Military Bases Agreement to 25 years from 1966, or
until 1991.
On August 30, 1951, the Philippines and the United States
entered into the Mutual Defense Treaty (MDT), whereby the
parties recognized 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 process.”9 The treaty provided that it “shall
remain in force indefi-
_______________
4. A narrative description of the boundaries of the bases to which this

Agreement relates is given in Annex A and Annex B. An exact description of the
bases listed in Annex A, with metes and bounds, in conformity with the narrative
descriptions, will be agreed upon between the appropriate authorities of the two
Governments as soon as possible. With respect to any of the bases listed in Annex B,
an exact description with metes and bounds, in conformity with the narrative
description of such bases, will be agreed upon if and when such bases are acquired by
the United States.
7 Id., Article III(1).
8 Id., Article XXIX.
9 Articles IV and V of the Mutual Defense Treaty (August 30, 1951) provides:
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 process.

498


nitely,” although either party “may terminate it one year after
notice has been given to the other Party.”10 It bears pointing out that
there is no explicit provision in the MDT which authorized the
presence in the Philippines of military bases, troops, or facilities of
the United States.
In 1986, during the early stages of the deliberations of the
Constitutional Commission, and in view of the impending expiration
of the MBA in 1991, the members of the Commission expressed
their concern that the continued presence of foreign military bases in
the country would amount to a derogation of national sovereignty.
The pertinent portion of the deliberations leading to the adoption of
the present Section 25, Article XVIII is quoted as follows:
FR. BERNAS. My question is: Is it the position of the
committee that the presence of foreign military bases in the
country under any circumstances is a derogation of national
sovereignty?
MR. AZCUNA. It is difficult to imagine a situation based
on existing facts where it would not. However, in the abstract,
it is possible that it would not be that much of a derogation. I
have in mind, Madam President, the argument that has been
presented. Is that the reason why there are U.S. bases in
England, in Spain and in Turkey? And it is not being claimed
that their sover-
_______________
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 or on its armed forces, public
vessels or aircraft in the Pacific.
10 Id., Article VIII.

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eignty is being derogated. Our situation is different from
theirs because we did not lease or rent these bases to the U.S.
The U.S. retained them from us as a colonial power.
FR. BERNAS. So, the second sentence, Madam President,
has specific reference to what obtains now.
MR. AZCUNA. Yes. It is really determined by the present
situation.
FR. BERNAS. Does the first sentence tolerate a situation
radically different from what obtains now? In other words, if
we understand sovereignty as auto-limitation, as a people’s
power to give up certain goods in order to obtain something
which may be more valuable, would it be possible under this
first sentence for the nation to negotiate some kind of a treaty
agreement that would not derogate against sovereignty?
MR. AZCUNA. Yes. For example, Madam President, if it
is negotiated on a basis of true sovereign equality, such as a
mutual ASEAN defense agreement wherein an ASEAN force
is created and this ASEAN force is a foreign military force
and may have a basis in the member ASEAN countries, this
kind of a situation, I think, would not derogate from
sovereignty.
MR. NOLLEDO. Madam President, may I be permitted to
make a comment on that beautiful question. I think there will
be no derogation of sovereignty if the existence of the military
bases as stated by Commissioner Azcuna is on the basis of a
treaty which was not only ratified by the appropriate body, like
the Congress, but also by the people.
I would like also to refer to the situation in Turkey where
the Turkish government has control over the bases in Turkey,
where the jurisdiction of Turkey is not impaired in anyway,
and Turkey retains the right to terminate the treaty under
circumstances determined by the host government. I think
under such circumstances, the existence of the military bases
may not be considered a derogation of sovereignty, Madam
President.
FR. BERNAS. Let me be concrete, Madam President, in
our circumstances. Suppose they were to

500


have this situation where our government were to
negotiate a treaty with the United States, and then the two
executive departments in the ordinary course of
negotiation come to an agreement. As our Constitution is
taking shape now, if this is to be a treaty at all, it will have
to be submitted to our Senate for its ratification. Suppose,
therefore, that what was agreed upon between the United
States and the executive department of the Philippines is
submitted and ratified by the Senate, then it is further
submitted to the people for its ratification and
subsequently, we ask the United States: “Complete the
process by accepting it as a treaty through ratification by
your Senate as the United States Constitution requires,”
would such an arrangement be in derogation of
sovereignty?
MR. NOLLEDO. Under the circumstances the
Commissioner just mentioned, Madam President, on the
basis of the provision of Section 1 that “sovereignty resides
in the Filipino people,” then we would not consider that a
derogation of our sovereignty on the basis and expectation
that there was a plebiscite.11 (Emphasis supplied)

As a safeguard against the derogation of national sovereignty, the
present form of Section 25, Article XVIII was finalized by the
Commission and ratified by the Filipino people in 1987.
On September 16, 1991, the Senate rejected the proposed Treaty
of Friendship, Cooperation and Security, which would have
extended the presence of US military bases in the Philippines.
Nevertheless, the defense and security relationship between the
Philippines and the United States continued in accordance with the
MDT.12
_______________
11 IV Record of the Constitutional Commission, pp. 661-662.

12 Supra note 2.

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Upon the expiration of the MBA in 1991, Section 25, Article
XVIII came into effect. The presence of foreign military bases,
troops or facilities in the country can only be allowed upon the
satisfaction of all three requirements set forth in Section 25, Article
XVIII.
On February 10, 1998, the Philippines and the United States
entered into the Visiting Forces Agreement (VFA), which required
the Philippines to facilitate the admission of United States
personnel,13 a term defined in the same treaty as “United States
military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine
Government.”14
United States Government equipment, materials, supplies, and
other property imported into the Philippines in connection with
activities to which the VFA applies, while not expressly stated to
be allowed into the Philippines by the provisions of the VFA, were
nevertheless declared to be free from Philippine duties, taxes and
similar charges. Title thereto was also declared to remain with the
United States.15
The VFA expressly allowed the importation into the Philippines
of reasonable quantities of personal baggage, personal effects, and
other property for the personal use of United States personnel.16 The
VFA likewise expressly allowed the entry into the Philippines of (1)
aircraft operated by or for the United States armed forces upon
approval of the Government of the Philippines in accordance with
procedures stipulated in implementing arrangements; and (2) vessels
operated by or for the United States armed forces upon approval of
the Government of the Philippines, in accordance with international
_______________
13 Visiting Forces Agreement (February 10, 1998), Article III.

14 Id., Article I.
15 Id., Article VII.
16 Id.

502


custom and practice and such agreed implementing arrangements
as necessary.17
The VFA also provided for the jurisdiction over criminal and
disciplinary cases over United States personnel with respect to
offences committed within the Philippines.18
The VFA further stated that the same 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.19
Subsequently, the constitutionality of the VFA was questioned
before the Court in the aforementioned October 10, 2000 case of
BAYAN v. Zamora,20 and again in the case of Nicolas v. Romulo.21 In
both cases, the Court held that Section 25, Article XVIII of the
Constitution is applicable, but the requirements thereof were
nevertheless complied with. In Nicolas, however, the implementing
Romulo-Kenney Agreements of December 19 and 22, 2006
concerning the custody of Lance Corporal Daniel J. Smith, who was
charged with the crime of rape, were declared not in accordance
with the VFA.
Thereafter, on April 28, 2014, the governments of the Philippines
and the United States entered into the assailed EDCA.

The EDCA

Under the EDCA, the Philippines by mutual agreement with the
United States, shall provide the United States forces the access and
use of portions of Philippine territory. United States forces are “the
entity comprising United States personnel and all property,
equipment, and materiel of the United States Armed Forces present
in the territory of the
_______________

18 Id., Article V.
19 Id., Article IX.
20 Supra note 2.
21 Supra note 5.

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VOL. 779, JANUARY 12, 2016 503


Philippines.” These portions of Philippine territory that will be
made available to the US are called “Agreed Locations,” which is a
new concept defined under Article II(4) of the EDCA as:

4. “Agreed Locations” means facilities and areas that are
provided by the Government of the Philippines through the
AFP and that the United States forces,22 United States
contractors, and others as mutually agreed, shall have the
right to access and use pursuant to this Agreement. Such
Agreed Locations may be listed in an annex to be appended to
this Agreement, and may further be described in
implementing arrangements. (Emphasis supplied)

Aside from the right to access and to use the Agreed Locations,
the United States may undertake the following types of activities
within the Agreed Locations: security cooperation exercises; joint
and combined training activities; humanitarian and disaster relief
activities; and such other activities that as may be agreed upon by
the Parties.”23 Article III(1) of the EDCA further states in detail the
activities that the United States may conduct inside the Agreed
Locations:
1. With consideration of the views of the Parties, the

Philippines hereby authorizes and agrees that United States
forces, United States contractors, and vehicles, vessels, and
aircrafts operated by or for United States forces may conduct
the following activities with respect to Agreed Locations:
training; transit; support and related activities; refueling
of aircraft; bunkering of vessels; temporary maintenance
of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications;
prepositioning of

_______________
22 “United States forces” means the entity comprising United States personnel
and all property, equipment and materiel of the United States Armed Forces present in
the territory of the Philippines. [Enhanced Defense Cooperation Agreement, Article
II(2)]
23 Enhanced Defense Cooperation Agreement, Article I(3).

504


equipment, supplies, and materiel; deploying forces and
materiel; and such other activities as the Parties may agree.
(Emphasis supplied)
The United States may access and use the Agreed Locations
without any obligation on its part to pay any rent or similar costs.24
In addition to the right to access and to use the Agreed Locations
and to conduct various activities therein, the United States, upon
request to the Philippines’ Designated Authorities,25 can further
temporarily access public land and facilities (including roads, ports,
and airfields), including those owned or controlled by local
governments, and to other land and facilities (including roads, ports,
and airfields).26
The United States is also granted operational control of Agreed
Locations to do construction activities, make alterations or
improvements of the Agreed Locations.27 All buildings, non-
relocatable structures, and assemblies affixed to the land in the
Agreed Locations, including [those] altered or improved by United
States forces, remain the property of the Philippines. Permanent
buildings constructed by the United States forces become the
property of the Philippines, once constructed, but shall be used by
the United States forces until no longer required.28
Incidental to the access and use of the Agreed Locations, the US
is granted the use of water, electricity and other pub-
_______________

25 Id., Article II(5) states:
5. “Designated Authorities” means, respectively, the Philippine Department of
National Defense, unless the Philippines otherwise provides written notice to the
United States, and the United States Department of Defense, unless the United States
otherwise provides written notice to the Philippines.
28 Id., Article V(4).

505
VOL. 779, JANUARY 12, 2016 505


lic utilities,29 as well as the use of the radio spectrum in relation
to the operation of its own telecommunications system.30
As to the management of the Agreed Locations, the United States
forces are authorized to exercise an rights and authorities within the
Agreed Locations that are necessary for their operational control or
defense, including taking appropriate measures to protect United
States forces and United States contractors. The United States
should coordinate such measures with appropriate authorities of the
Philippines.31
The United States is authorized to preposition and store defense
equipment, supplies, and materiel (“prepositioned materiel”),
including but not limited to, humanitarian assistance and disaster
relief equipment, supplies and material, at Agreed Locations.32 The
prepositioned materiel of the United States forces shall be for the
exclusive use of United States forces, and full title to all such
equipment, supplies and materiel remains with the United States.33
United States forces and United States contractors34 shall have
unimpeded access to Agreed Locations for all matters relating to the
prepositioning and storage of defense equipment, supplies, and
materiel, including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and
materiel.35 The United States forces and United States contractors
shall retain title to all equipment, materiel, supplies, relocat-
_______________
29 Id., Article VII(1).

31 Id., Article VI(3).
32 Id., Article IV(1).
34 Id., Article II defines United States contractors as:
3. “United States contractors” means companies and firms, and their employees,
under contract or subcontract to or on behalf of the United States Department of
Defense. United States contractors are not included as part of the definition of United
States personnel in this Agreement, including within the context of the VFA.

506


able structures, and other movable property that have been
imported into or acquired within the territory of the Philippines by
or on behalf of United States forces.36
Considering the presence of US armed forces: military personnel,
vehicles, vessels, and aircrafts and other defensive equipment,
supplies, and materiel in the Philippines, for obvious military
purposes and with the obvious intention of assigning or stationing
them within the Agreed Locations, said Agreed Locations, for all
intents and purposes, are considered military bases and fall squarely
under the definition of a military base under Section 2, Presidential
Decree No. 1227, otherwise known as “Punishing Unlawful Entry
into Any Military Base in the Philippines,” which states:

SECTION 2. The term “military base” as used in this
decree means any military, air, naval, or coast guard
reservation, base, fort, camp, arsenal, yard, station, or
installation in the Philippines. (Emphasis supplied)

In the same vein, Article XXVI of the 1947 RP-US Military
Bases Agreement (MBA) defined a military base as “areas named in
Annex A and Annex B and such additional areas as may be acquired
for military purposes pursuant to the terms of this Agreement.”37
_______________
36 Id., Article V(3).

37 Annexes A and B referred to under the MBA included the following military
bases in the Philippines, namely: Clark Field Air Base, Pampanga; Mariveles Military
Reservation, POL Terminal and Training Area, Bataan; Camp John Hay Leave and
Recreation Center, Baguio; Subic Bay, Northwest Shore Naval Base, Zambales
Province, and the existing Naval reservation at Olongapo and the existing Baguio
Naval Reservation; Cañacao-Sangley Point Navy Base, Cavite Province; Mactan
Island Army and Navy Air Base; Florida Blanca Air Base, Pampanga; Camp Wallace,
San Fernando, La Union; and Aparri Naval Air Base, among others. (Military Bases
Agreement [March 14, 1947])

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VOL. 779, JANUARY 12, 2016 507


Considering further that the United States armed forces stationed
in the Philippines, as well as their relocatable structures, equipment
and materiel are owned, maintained, controlled, and operated by the
United States within Philippine territory, these Agreed Locations are
clearly overseas military bases of the US with RP as its host country.
The EDCA provided for an initial term of ten years, which
thereafter shall continue in force automatically, unless terminated by
either party by giving one year’s written notice through diplomatic
channels of its intention to terminate the agreement.38
Interestingly, the EDCA has similar provisions found in the 1947
MBA:
_______________
38 Enhanced Defense Cooperation Agreement, Article XII(4).

508


509
VOL. 779, JANUARY 12, 2016 509


510


The EDCA is not a mere
implementing agreement
of the MDT or the VFA

As can be seen in the above table of comparison, these EDCA
provisions establishes military areas similar to that in the
Military Bases Agreement, and for that reason alone, the EDCA is
far greater in scope than both the Mutual Defense Treaty and the
Visiting Forces Agreement. The EDCA is not a mere implementing
agreement of either the MDT or the VFA.
The EDCA is an international agreement that allows the
presence in the Philippines of foreign military

511
VOL. 779, JANUARY 12, 2016 511


bases, troops and facilities, and thus requires that the three
requisites under Section 25, Article XVIII be complied with. The
EDCA must be submitted to the Senate for concurrence.
The majority opinion posits, inter alia, that the President may
enter into an executive agreement on foreign military bases, troops,
or facilities if: (a) it “is not the principal agreement that first
allowed their entry or presence in the Philippines,” or (b) it
merely aims to implement an existing law or treaty. Likewise, the
President alone had the choice to enter into the EDCA by way of an
executive agreement or a treaty. Also, the majority suggests that
executive agreements may cover the matter of foreign military
forces if it involves detail adjustments of previously existing
international agreements.
The above arguments fail to consider that Section 25, Article
XVIII of the Constitution covers three distinct and mutually
independent situations: the presence of foreign military bases or
troops or facilities. The grant of entry to foreign military troops does
not necessarily allow the establishment of military bases or
facilities.39
Generally, the parties to an international agreement are given the
freedom to choose the form of their agreement.
International agreements may be in the form of: (1) treaties,
which require legislative concurrence after executive ratification; or
(2) executive agreements, which are similar to treaties, except that
they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than
treaties. Under Article 2 of the Vienna Convention on the Law of
Treaties, a treaty is defined as an international agreement concluded
between states in written form and governed by international law,
whether
_______________
39 Supra note 2 at p. 653; p. 484.

512


embodied in a single instrument or in two or more related
instruments and whatever its particular designation.40
In the 1961 case of Commissioner of Customs v. Eastern Sea
Trading,41 the Court had occasion to state that “[i]nternational
agreements involving political issues or changes of national policy
and those involving international arrangements of a permanent
character usually take the form of treaties. 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.
In the more recent case of Bayan Muna v. Romulo,42 the Court
expounded on the above pronouncement in this wise:

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.
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,
_______________
40 Id., at p. 657; pp. 488-489.

41 113 Phil. 333, 338; 3 SCRA 351, 356 (1961).
42 656 Phil. 246, 271-272; 641 SCRA 244, 260-262 (2011).

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VOL. 779, JANUARY 12, 2016 513


the environment, and the sea. x x x Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement
format would be convenient to serve its best interest. As
Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here
the large variety of executive agreements as such
concluded from time to time. Hundreds of executive
agreements, other than those entered into under the
trade agreement act, have been negotiated with foreign
governments. x x x. They cover such subjects as the
inspection of vessels, navigation dues, income tax on
shipping profits, the admission of civil air craft, custom
matters and commercial relations generally,
international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x. (Citations
omitted)

However, it must be emphasized that while in the above case, the
Court called attention to “one type of executive agreement which is
a treaty-authorized or a treaty-implementing executive
agreement, which necessarily would cover the same matter subject
of the underlying treaty,” still, the Court cited the special situation
covered by Section 25, Article XVIII of the Constitution which
explicitly prescribes the form of the international agreement. The
Court stated:

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

514


therein to complete the ratification process.43 (Emphasis
supplied, citation omitted)

Clearly, the Court had since ruled that when the situation and
matters contemplated in Sec. 25, Article XVIII obtains, i.e., when
the subject matter of an international agreement involves the
presence of foreign military bases, troops or facilities, a treaty is
required and that the same must be submitted to the Senate for the
latter’s concurrence. In BAYAN v. Zamora,44 the Court held that
Section 25, Article XVIII, like Section 21, Article VII, embodies a
phrase in the negative, i.e., “shall not be allowed” and therefore, the
concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.
What the majority did is to carve out exceptions to Section 25,
Article XVIII when none is called for.
As previously discussed, the language of Section 25, Article
XVIII is clear and unambiguous. The cardinal rule is that the plain,
clear and unambiguous language of the Constitution should be
construed as such and should not be given a construction that
changes its meaning.45 The Court also enunciated in Chavez v.
Judicial and Bar Council46 that:
The Constitution evinces the direct action of the Filipino

people by which the fundamental powers of government are
established, limited and defined and by which those powers
are distributed among the several departments for their safe
and useful exercise for the benefit of the body politic. The
Framers reposed their wisdom and vision on one suprema lex
to be the ultimate expression of the principles and the
framework upon
_______________
43 Id., at p. 273; pp. 262-263.

44 Supra note 2.
45 Soriano III v. Lista, 447 Phil. 566, 570; 399 SCRA 437, 440-441 (2003).
46 G.R. No. 202242, April 16, 2013, 696 SCRA 496, 507-508.

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which government and society were to operate. Thus, in
the interpretation of the constitutional provisions, the Court
firmly relies on the basic postulate that the Framers mean what
they say. The language used in the Constitution must be
taken to have been deliberately chosen for a definite
purpose. Every word employed in the Constitution must
be interpreted to exude its deliberate intent which must be
maintained inviolate against disobedience and defiance.
What the Constitution clearly says, according to its text,
compels acceptance and bars modification even by the
branch tasked to interpret it. (Emphasis supplied; citation
omitted)

The majority opinion posits that the EDCA is consistent with the
content, purpose and framework of the MDT and the VFA. As such,
the majority argues that the EDCA may be in the form of an
executive agreement as it merely implements the provisions of the
MDT and the VFA.
I disagree. Compared closely with the provisions of the MDT and
the VFA, the EDCA transcends in scope and substance the subject
matters covered by the aforementioned treaties. Otherwise stated,
the EDCA is an entirely new agreement unto itself.
The MDT in relation to the EDCA

We noted in Lim v. Executive Secretary47 that the MDT has been
described as the “core” of the defense relationship between the
Philippines and its traditional ally, the United States. The aim of the
treaty is to enhance the strategic and technological capabilities of
our armed forces through joint training with its American
counterparts.
As explicitly pronounced in its declaration of policies, the MDT
was entered into between the Philippines and the

_______________
47 430 Phil. 555, 571-572; 380 SCRA 739, 752 (2002).

516


United States in order to actualize their desire “to declare
publicly and formally their sense of unity and their common
determination to defend themselves against external armed
attack”48 and “further to strengthen their present efforts to
collective defense for the preservation of peace and security
pending the development of a more comprehensive system of
regional security in the Pacific area.”49
Under Article II of the MDT, the parties undertook “separately
and jointly by self-help and mutual aid” to “maintain and develop
their individual and collective capacity to resist armed attack.”50
Article III thereof states that the parties to the treaty shall “consult
together from time to time regarding the implementation of [the]
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.”51
Moreover, Article IV states that the individual parties to the
treaty “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 process.”52 This provision
highlights the need for each party to follow their respective
constitutional processes and, therefore, the MDT is not a self-
executing agreement. It follows that if the Philippines aims to
implement the MDT in the manner that the majority opinion
suggests, such implementation must adhere to the mandate of
Section 25, Article XVIII of the Constitution.
Also, under the above article, the parties are thereafter obligated
to immediately report to the Security Council of the
_______________
48 Mutual Defense Treaty, Preamble, paragraph 3.

49 Id., Preamble, paragraph 4.
50 Id., Article II.
51 Id., Article III.
52 Id., Article IV, first paragraph.

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United Nations the occurrence of any such armed attack and all
the measures taken as result thereof. Said measures shall be
terminated when the Security Council has taken the measures
necessary to restore and maintain international peace and security.53
Article V of the treaty explained that “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 or on its armed
forces, public vessels or aircraft in the Pacific.”54
Under Article VIII of the treaty, the parties agreed that the treaty
shall remain in force indefinitely and that either party may terminate
it one year after notice has been given to the other party.55
Clear from the foregoing provisions is that the thrust of the MDT
pertains to the furtherance of the avowed purpose of the parties
thereto of maintaining and developing their individual and collective
capacity to resist external armed attack only in the metropolitan
territory of either party or in their island territories in the Pacific
Ocean. Accordingly, the territories of the parties other than
those mentioned are not covered by the MDT.
Conspicuously absent from the MDT are specific provisions
regarding the presence in Philippine territory — whether permanent
or temporary — of foreign military bases, troops, or facilities. The
MDT did not contemplate the presence of foreign military bases,
troops or facilities in our country in view of the fact that it was
already expressly covered by the MBA that was earlier entered into
by the Philippines and the United States in 1947. Moreover, the
MDT contains no delegation of power to the President to enter into
an agreement relative to the establishment of foreign military bases,
troops,
_______________
53 Id., Article IV, second paragraph.

54 Id., Article V.

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or facilities in our country. The MDT cannot also be treated as
allowing an exception to the requirements of Section 25, Article
XVIII of the Constitution, which took effect in 1987. As explained
above, the reference to constitutional processes of either party in the
MDT renders it obligatory that the Philippines follow Section 25,
Article XVIII of the Constitution.
Indeed, the MDT covers defensive measures to counter an armed
attack against either of the parties’ territories or armed forces but
there is nothing in the MDT that specifically authorizes the presence,
whether temporary or permanent, of a party’s bases, troops, or
facilities in the other party’s territory even during peace time or in
mere anticipation of an armed attack.
On the other hand, the very clear-cut focal point of the EDCA is
the authority granted to the United States forces and contractors to
have unimpeded access to so-called Agreed Locations — which can
be anywhere in the Philippines — and to build there military
facilities and use the same to undertake various military activities.
The very wording of the EDCA shows that it undoubtedly deals with
the presence of foreign military bases, troops, and facilities in
Philippine territory.
Thus, contrary to the posturing of the majority, the presence of
foreign military bases, troops, or facilities provided under the EDCA
cannot be traced to the MDT. Moreover, the general provisions of
the MDT cannot prevail over the categorical and specific provision
of Section 25, Article XVIII of the Constitution.
As will be further highlighted in the succeeding discussion, the
EDCA creates new rights, privileges and obligations between the
parties thereto.
The VFA in relation to the EDCA

With respect to the VFA, the EDCA likewise surpasses the
provisions of the said former treaty.

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The VFA primarily deals with the subject of allowing elements of
the United States armed forces to visit the Philippines from time to
time for the purpose of conducting activities, approved by the
Philippine government, in line with the promotion and protection of
the common security interests of both countries.
In the case of BAYAN v. Zamora,56 the Court ruled that the VFA
“defines the treatment of United States troops and personnel visiting
the Philippines,” “provides for the guidelines to govern such visits
of military personnel,” and “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.”
We likewise reiterated in Lim v. Executive Secretary,57 that:
The VFA provides the “regulatory mechanism” by which

“United States military and civilian personnel [may visit]
approved by the Philippine Government.” It contains
provisions relative to entry and departure of American
personnel, driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation, movement
of vessels and aircraft, as well as the duration of the
agreement and its termination. It is the VFA which gives
continued relevance to the MDT despite the passage of years.
Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces
in the event of an attack by a common foe.

To a certain degree, the VFA is already an amplification of the
MDT in that it allows the presence of visiting foreign troops for
cooperative activities in peace time. Thus, in line with the mandate
of Section 25, Article XVIII of the Constitu-
_______________
56 Supra note 2 at p. 652; p. 483.


520


tion, the VFA is embodied in a treaty concurred in by the Senate.
In particular, the coverage of the VFA is as follows:
1) The admission of United States personnel and their departure
from Philippines in connection with activities covered by the
agreement, and the grant of exemption to United States personnel
from passport and visa regulations upon entering and departing from
the Philippines;58
2) The validity of the driver’s license or permit issued by the
United States, thus giving United States personnel the authority to
operate military or official vehicles within the Philippines;59
3) The rights of the Philippines and the United States in matters
of criminal jurisdiction over United States personnel who commit
offenses within the Philippine territory and punishable under
Philippine laws;60
4) The importation and exportation of equipment, materials,
supplies and other property, by United States personnel free from
Philippine duties, taxes and similar charges;61
5) The movement of United States aircrafts, vessels and vehicles
within Philippine territory;62 and
6) The duration and termination of the agreement.63

In contrast, the EDCA specifically deals with the following
matters:
_______________
58 Visiting Forces Agreement, Article III.

59 Id., Article IV.
60 Id., Article V.
63 Id., Article IX.

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1) The authority of the United States forces to access facilities
and areas, termed as “Agreed Locations,” and the activities that may
be allowed therein;64
2) The grant to the United States of operational control of Agreed
Locations to do construction activities and make alterations or
improvements thereon;65
3) The conditional access to the Agreed Locations of the
Philippine Designated Authority and its authorized representative;66
4) The storage and prepositioning of defense equipment, supplies
and materiel, as well as the unimpeded access granted to the United
States contractors to the Agreed Locations in matters regarding the
prepositioning, storage, delivery, management, inspection, use,
maintenance and removal of the defense equipment, supplies, and
materiel; and the prohibition that the preposition materiel shall not
include nuclear weapons;67
5) a) The ownership of the Agreed Locations by the Philippines,
b) the ownership of the equipment, materiel, supplies, relocatable
structures and other moveable property imported or acquired by the
United States, c) the ownership and use of the buildings, non-
relocatable structures, and assemblies affixed to the land inside the
Agreed Locations;68
6) The cooperation between the parties in taking measures to
ensure protection, safety and security of United States forces,
contractors and information in Philippine territory; the primary
responsibility of the
_______________
64 Enhanced Defense Cooperation Agreement, Article II.

67 Id., Article IV.
68 Id., Article V.

522


Philippines to secure the Agreed Locations, and the right of the
United States to exercise all rights and authorities within the Agreed
Locations that are necessary for their operational control or
defense;69
7) The use of water, electricity and other public utilities;70
8) The use of the radio spectrum in connection with the operation
of a telecommunications system by the United States;71
9) The authority granted to the of the United States to contract for
any materiel, supplies, equipment, and services (including
construction) to be furnished or undertaken inside Philippine
territory;72

10) The protection of the environment and human health and
safety, and the observance of Philippine laws on environment and
health, and the prohibition against the intentional release of
hazardous waste by the United States and the containment of thereof
in case a spill occurs;73
11) The need to execute implementing arrangements to address
details concerning the presence of United States forces at the Agreed
Locations and the functional relations between the United States
forces and the AFP with respect to the Agreed Locations;74 and
12) The resolution of disputes arising from the EDCA through
consultation between the parties.75
_______________
69 Id., Article VI.

73 Id., Article IX.
74 Id., Article X.
75 Id., Article XI.

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Initially, what is abundantly clear with the foregoing enumeration
is that the EDCA is an entirely new creation. The provisions of the
EDCA are not found in or have no corresponding provisions in the
VFA. They cover entirely different subject matters and they create
new and distinct rights and obligations on the part of the Philippines
and the United States.
Furthermore, as to the nature of the presence of foreign military
troops in this country, the VFA is explicit in its characterization that
it is an agreement between the governments of the Philippines and
the United States regarding the treatment of United States Armed
Forces visiting the Philippines. The Preamble of the VFA likewise
expressly provides that, “noting that from time to time elements of
the United States armed forces may visit the Republic of the
Philippines”76 and “recognizing the desirability of defining the
treatment of United States personnel visiting the Republic of the
Philippines”77 the parties to the VFA agreed to enter into the said
treaty. The use of the word visit is very telling. In its ordinary usage,
to visit is to “stay temporarily with (someone) or at (a place) as a
guest or tourist” or to “go to see (someone or something) for a
specific purpose.”78 Thus, the word visit implies the temporariness
or impermanence of the presence at a specific location.
On the other hand, under the EDCA, United States forces and
United States contractors are permitted to stay in the Agreed
Locations to undertake military activities therein without any clear
limitation as to the duration of their stay. Moreover, they are
given unimpeded access to Agreed Locations to conduct different
activities that definitely were not contemplated under the VFA.
_______________
76 Visiting Forces Agreement, Preamble, third paragraph.

77 Id., fifth paragraph.
78 http://www.oxforddictionaries.com/us/definition/american_english/visit.
Accessed on December 14, 2015, 5:30 PM.

524


The Court’s ruling in Lim v. Executive Secretary79 provides some
insights as to the scope of activities germane to the intention of the
VFA. Thus:

The first question that should be addressed is whether
“Balikatan 02-1” is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to the VFA
itself. Not much help can be had therefrom, unfortunately,
since the terminology employed is itself the source of the
problem. The VFA permits United States personnel to engage,
on an impermanent basis, in “activities,” the exact meaning of
which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the
approval of the Philippine government. The sole encumbrance
placed on its definition is couched in the negative, in that
United States personnel must “abstain from any activity
inconsistent with the spirit of this agreement, and in
particular, from any political activity.” All other activities, in
other words, are fair game.
x x x x
territory for purposes other than military. As conceived, the
joint exercises may include training on new techniques of
“Balikatan 02-1,” a “mutual anti-terrorism ad-
_______________
79 Lim v. Executive Secretary, supra note 47 at pp. 572-575; pp. 752-755.

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vising, assisting and training exercise,” falls under the
umbrella of sanctioned or allowable activities in the context of
the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that
combat-related activities — as opposed to combat itself —
such as the one subject of the instant petition, are indeed
authorized. (Emphases supplied, citations omitted)

The above discussion clearly shows that the VFA was intended
for noncombat activities only.
In the instant case, the OSG averred that the entry of the United
States forces into the Agreed Location is borne out of “military
necessity.”80 Military necessity means the necessity attending
belligerent military operations that is held to justify all measures
necessary to bring an enemy to complete submission excluding
those (as cruelty, torture, poison, perfidy, wanton destruction) that
are forbidden by modern laws and customs of war.81
In the instant case, some of the activities that the United States
forces will undertake within the Agreed Locations such as
prepositioning of defense equipment, supplies and materiel, and
deploying of forces and materiel are actual military measures
supposedly put into place in anticipation of battle. To preposition
means “to place military units, equipment, or supplies at or near the
point of planned use or at a designated location to reduce reaction
time, and to ensure timely support of a specific force during initial
phases of an operation.”82 On the other hand, materiel is defined as
“all items necessary to equip, operate, maintain, and support military
activities without distinction as to its application for administrative
or
_______________
80 Rollo (G.R. No. 212444), p. 481.

81 Webster’s Third New International Dictionary [1993].
82 http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December 11,
2015, 11:48 AM.

526


combat purposes.”83 Also, to deploy means “to place or arrange
(armed forces) in battle disposition or formation or in locations
appropriate for their future employment.”84 Deployment also means
“the rotation of forces into and out of an operational area.”85
The EDCA likewise allows the construction of permanent
buildings, which the United States forces can utilize until such time
that they no longer need the use thereof. The construction of
permanent buildings, including the alteration or improvement by the
United States of existing buildings, structures and assemblies affixed
to the land, are certainly necessary not only for the accommodation
of its troops, bunkering of vessels, maintenance of its vehicles, but
also the creation of the proper facilities for the storage and
prepositioning of its defense materiel. This grant of authority to
construct new buildings and the improvement of existing buildings
inside the Agreed Locations — which buildings are to be used
indefinitely — further evinces the permanent nature of the stay of
United States forces and contractors in this country under the
EDCA. This is a far cry from the temporary visits of United States
armed forces contemplated in the VFA.
Moreover, aside from agreements that the Philippines and the
United States may subsequently enter into with respect to the access
of the United States forces in the Agreed Locations on a “rotational
basis,”86 and other activities that the United States may conduct
therein,87 the EDCA also contains provisions requiring the execution
of further “implementing arrangements” with regard to description
of the Agreed Loca-
_______________

2015, 11:48 AM.
84 Webster’s Third New International Dictionary [1993].
2015, 12:36 PM.
86 Enhanced Defense Cooperation Agreement, Article I(1)(b).

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tions,88 “[funding] for construction, development, operation and
maintenance costs at the Agreed Locations,”89 and “additional
details concerning the presence of the United States forces at the
Agreed Locations and the functional relations between the United
States forces and the AFP with respect to Agreed Locations.”90
Article II(4) of the EDCA states that the Agreed Locations shall
be provided by the Philippine Government through the AFP. What
is readily apparent from said article is that the AFP is given a broad
discretion to enter into agreements with the United States with
respect to the Agreed Locations. The grant of such discretion to the
AFP is without any guideline, limitation, or standard as to the size,
area, location, boundaries and even the number of Agreed Locations
to be provided to the United States forces. As there is no sufficient
standard in the EDCA itself, and no means to determine the limits of
authority granted, the AFP can exercise unfettered power that may
have grave implications on national security. The intervention of the
Senate through the constitutionally ordained treaty-making process
in defining the new national policy concerning United States access
to Agreed Locations enunciated in the EDCA, which has never been
before expressly or impliedly authorized, is imperative and
indispensible for the validity and effectivity of the EDCA.
The above distinctions between the EDCA and the VFA,
therefore, negate the OSG’s argument that the EDCA merely
involves “adjustments in detail” of the VFA. To my mind, the EDCA
is the general framework for the access and use of the Agreed
Locations by the United States forces and contractors rather than an
implementing instrument of both the MDT and the VFA.
_______________
88 Id., Article II(4).

90 Id., Article X(3).

528


As stated above, Section 25, Article XVIII contemplates three
different situations: a treaty concerning the allowance within the
Philippines of (a) foreign military bases, (b) foreign military troops,
or (c) foreign military facilities, such that a treaty that involves any
of these three standing alone would fall within the coverage of the
said provision. The VFA clearly contemplates only visits of foreign
military troops.
The VFA, which allows the presence of the units of the United
States military troops, cannot by any stretch of the imagination
include any arrangement that practically allows the establishment of
United States military bases or facilities in the so-called Agreed
Locations under the EDCA. Thus, the EDCA goes far-beyond the
arrangement contemplated by the VFA and therefore it necessarily
requires Senate concurrence as mandated by Section 25, Article
XVIII of the Constitution. In the same vein, the initial entry of
United States troops under the VFA cannot, as postulated by the
ponencia, justify a “treaty-authorized” presence under the EDCA,
since the presence contemplated in the EDCA also pertains to the
establishment of foreign military bases or facilities, and not merely
visiting troops.
The argument that the entry of the United States bases, troops
and facilities under the EDCA is already allowed in view of the
“initial entry” of United States troops under the VFA glaringly
ignores that the entry of visiting foreign military troops is distinct
and separate from the presence or establishment of foreign military
bases or facilities in the country under Section 25, Article XVIII of
the Constitution.
To reiterate, the EDCA is entirely a new treaty, separate and
distinct from the VFA and the MDT. Hence, it must satisfy the
requirements under Section 25, Article XVIII of the Constitution.
The Senate itself issued Resolution No. 105 on November 10, 2015,
whereby it expressed its “definite stand on the non-negotiable power
of the Senate to decide whether a treaty will be valid and effective
depending on the Senate concurrence” and resolved “that the RP-US
EDCA [is a] treaty

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[that] requires Senate concurrence in order to be valid and
effective.”
Incidentally, with respect to the VFA, there is a difference of
opinion whether or not the same is an implementing agreement of
the MDT, as the latter does not confer authority upon the United
States President (or the Philippine President) to enter into an
executive agreement to implement said treaties. Still, in Nicolas v.
Romulo,91 the Court noted that even if the VFA was treated as an
implementing agreement of the MDT, the VFA was submitted to the
Senate for concurrence.
By no means should this opinion be construed as one questioning
the President’s intention and effort to protect our national territory
and security. However, in the case of Tawang Multi-Purpose
Cooperative v. La Trinidad Water District,92 the Court said:
There is no “reasonable and legitimate” ground to violate

the Constitution. The Constitution should never be violated by
anyone. Right or wrong, the President, Congress, the Court,
x x x have no choice but to follow the Constitution. Any act,
however noble its intentions, is void if it violates the
Constitution. This rule is basic.
In Social Justice Society, the Court held that, “In the
discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes
must be observed.” In Sabio, the Court held that, “the
Constitution is the highest law of the land. It is ‘the basic and
paramount law to which x x x all persons, including the
highest officials of the land, must defer. No act shall be valid,
however noble its intentions,
_______________
91 Chief Justice Reynato S. Puno and Justice Carpio submitted stirring dissenting
opinions which assail the constitutionality of the VFA on its being unenforceable due
to the absence of ratification by the US Senate.
92 661 Phil. 390, 406; 646 SCRA 21, 39-40 (2011).

530


if it conflicts with the Constitution.’” In Bengzon v. Drilon,
the Court held that, “the three branches of government must
discharge their respective functions within the limits of
authority conferred by the Constitution.” In Mutuc v.
Commission on Elections, the Court held that, “The three
departments of government in the discharge of the
functions with which it is [sic] entrusted have no choice
but to yield obedience to [the Constitution’s] commands.
Whatever limits it imposes must be observed.” (Emphases
supplied, citations omitted)

A final word. While it is true that the Philippines cannot stand
alone and will need friends within and beyond this region of the
world, still we cannot offend our Constitution and bargain away our
sovereignty.
Accordingly, I vote to grant the consolidated petitions.

DISSENTING OPINION
BRION, J.:

Before this Court is the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA), an executive agreement
with the United States of America (U.S.) that the Executive
Department entered into and ratified on June 6, 2014.1
This case is not an easy one to resolve for many reasons — the
stakes involved in light of contemporary history, the limited reach of
judicial inquiry, the limits of the Court’s own legal competence in
fully acting on petitions before it, and the plain and clear terms of
our Constitution. While the petitions, the comments, and the
ponencia all extensively dwell on constitutional, statutory, and
international law, the constitutional challenge cannot be resolved
based solely on our con-
_______________
1 Instrument of Ratification, Annex A of the Memorandum of OSG, Rollo, p. 476.

[Per p. 318 of ponencia, to verify from Rollo]

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sideration of the Constitution nor through the prism of Philippine
national interest considerations, both expressed and those left
unspoken in these cases. In our globalized world where Philippine
interests have long been intersecting with those of others in the
world, the country’s externalities — the international and regional
situations and conditions — must as well be considered as operating
background from where the Philippines must determine where its
national interests lie.
From the practical point of view of these externalities and the
violation of Philippine territorial sovereignty that some of us have
expressed, a quick decision may immediately suggest itself — let us
do away with all stops and do what we must to protect our
sovereignty and national integrity.
What renders this kind of resolution difficult to undertake is the
violation of our own Constitution — the express manifestation of the
collective will of the Filipino people — that may transpire if we
simply embrace the proffered easy solutions. Our history tells us that
we cannot simply turn a blind eye to our Constitution without
compromising the very same interests that we as a nation want to
protect through a decision that looks only at the immediate practical
view. To lightly regard our Constitution now as we did in the past, is
to open the way to future weightier transgressions that may
ultimately be at the expense of the Filipino people.
It is with these thoughts that this Opinion has been written: I
hope to consider all the interests involved and thereby achieve a
result that balances the immediate with the long view of the
concerns besetting the nation.
I am mindful, of course, that the required actions that would
actively serve our national interests depend, to a large extent, on the
political departments of government — the Executive and, to some
extent, the Legislature.2 The Judiciary has only one assigned role —
to ensure that the Constitution
_______________
2 Constitution, Article VII, Section 21; Article XVIII, Section 25.

532


is followed and, in this manner, ensure that the Filipino people’s
larger interests, as expressed in the Constitution, are protected.3
Small though this contribution may be, let those of us from the
Judiciary do our part and be counted.

I. The Case
I.A. The Petitions

The challenges to the EDCA come from several petitions that
uniformly question — based on Article XVIII, Section 25 of the
1987 Constitution — the use of an executive agreement as the
medium for the agreement with the U.S. The petitioners posit that
the EDCA involves foreign military bases, troops, and facilities
whose entry into the country should be covered by a treaty
They question substantive EDCA provisions as well, particularly
the grant of telecommunication and tax privileges to the U.S. armed
forces and its personnel;4 the constitutional ban against the presence
and storage of nuclear weapons within the Philippines;5 the violation
of the constitutional mandate to protect the environment;6 the
deprivation by the EDCA of the exercise by the Supreme Court of
its power of judicial review;7 the violation of the constitutional
policy on the preferential use of Filipino labor and materials;8 the
violation of the constitu-
_______________
3 Derived from the Supreme Court’s powers under Article VIII, Section 5(2)(a) of
the Constitution.
4 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 46-47, 79-81.
5 Id., at pp. 52-57; Saguisag, et al. Petition (G.R. No. 212444), pp. 32-34.
6 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 84-87.
8 Id., at pp. 82-84.

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tional command to pursue an independent foreign policy;9 the
violation of the constitutional provision on the autonomy of local
government units10 and of National Building Code;11 and, last but
not the least, they question the EDCA for being a one-sided
agreement in favor of the Americans.12

I.B. The Respondents’ Positions

The respondents, through the Office of the Solicitor General
(OSG), respond by questioning the petitioners on the threshold
issues of justiciability, prematurity and standing, and by invoking the
application of the political question doctrine.13
The OSG claims as well that the EDCA is properly embodied in
an executive agreement as it is an exercise of the President’s power
and duty to serve and protect the people, and of his commander-in-
chief powers;14 that the practical considerations of the case requires
a deferential review of executive decisions over national security;15
that the EDCA is merely in implementation of two previous treaties
— the Mutual Defense Treaty of 1951 (1951 MDT) and the Visiting
Forces Agreement of 1998 (1998 VFA);16 that the President may
choose the form of the agreement, provided that the agreement
dealing with foreign military bases, troops, or facilities is not the
principal agreement that first allowed their entry or presence in the
Philippines.
_______________
10 Id., at pp. 87-89.
11 Id., at pp. 90-91.
12 Id., at pp. 44-45, 58-59; Saguisag, et al. Petition (G.R. No. 212426), pp. 39-49.
13 OSG Consolidated Comment, pp. 3-8.
14 Id., at pp. 10-13.
15 Id., at pp. 13-14.
16 Id., at pp. 14-21.

534


I.C. The Ponencia

The ponencia exhaustively discusses many aspects of the
challenges in its support of the OSG positions. It holds that the
President is the chief implementor of the law and has the duty to
defend the State, and for these purposes, he may use these powers in
the conduct of foreign relations;17 even if these powers are not
expressly granted by the law in this regard, he is justified by
necessity and is limited only by the law since he must take the
necessary and proper steps to carry the law into execution.
The ponencia further asserts that the President 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.18
It adds that the 1951 MDT is not an obsolete treaty;19 that the
1998 VFA has already allowed the entry of U.S. troops and civilian
personnel and is the treaty being implemented by the EDCA;20 that
the President may generally enter into executive agreements subject
to the limitations defined by the Constitution, in furtherance of a
treaty already concurred in by the Senate;21 that the President can
choose to agree to the EDCA either by way of an executive
agreement or by treaty.22 While it compares the EDCA with the
1951 MDT and the 1998 VFA, it claims at the same time it merely
implements these treaties.23
_______________
17 Ponencia, pp. 299-304, 337-340.

18 Id., at pp. 342-367.
19 Id., at p. 349.
20 Id., at pp. 384-388.
21 Id., at pp. 357-371.
22 Id., at pp. 371-375.
23 Id., at pp. 375-413.

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On the exercise of its power of judicial review, the ponencia
posits that the Court does not look into whether an international
agreement should be in the form of a treaty or an executive
agreement, save in the cases in which the Constitution or a statute
requires otherwise;24 that the task of the Court is to determine
whether the international agreement is consistent with applicable
limitations;25 and that executive agreements may cover the matter of
foreign military forces if these merely involve adjustments of
details.26

I.D. The Dissent

I dissent, as I disagree that an executive agreement is the
proper medium for the matters covered by the EDCA. The
EDCA is an agreement that, on deeper examination, violates the
letter and spirit of Article XVIII, Section 25 and Article VII, Section
21, both of the Constitution.
The EDCA should be in the form of a treaty as it brings back
to the Philippines:
- the modern equivalent of the foreign military bases whose
term expired in 1991 and which Article XVIII, Section 25 of the
Constitution directly addresses;
- foreign troops under arrangements outside of the
contemplation of the visiting forces that the 1998 VFA allows;
and
- military facilities that, under modern military strategy,
likewise can be brought in only through a treaty.
_______________
24 Id., at p. 375.

25 Id.
26 Id., at pp. 375-378.

536


As the ponencia does, I shall discuss the background facts and
the threshold issues that will enable the Court and the reading public
to fully appreciate the constitutional issues before us, as well as my
reasons for the conclusion that the EDCA, as an executive
agreement, is constitutionally deficient.
I purposely confine myself to the term “constitutionally
deficient” (instead of saying “unconstitutional”) in light of my
view that the procedural deficiency that plagues the EDCA as an
executive agreement is remediable and can still be addressed.
Also on purpose, I refrain from commenting on the substantive
objections on the contents of the EDCA for the reasons explained
below.

II. The Threshold Issues

The petitioners bring their challenges before this Court on the
basis of their standing as citizens, taxpayers, and former legislators.
The respondents, on the other hand, question the justiciability of the
issues raised and invoke as well the political question doctrine to
secure the prompt dismissal of the petitions. I shall deal with these
preliminary issues below, singly and in relation with one another, in
light of the commonality that these threshold issues carry.
The petitioners posit that the use of an executive agreement as
the medium to carry EDCA into effect, violates Article XVIII,
Section 25 of the 1987 Constitution and is an issue of transcendental
importance that they, as citizens, can raise before the Supreme
Court.27 (Significantly, the incumbent Senators are not direct
participants in this case and only belatedly reflected their
institutional sentiments through a Resolution.)28 The petitioners in
G.R. No. 212444 also claim that the constitutionality of the EDCA
involves the assertion and
_______________
27 Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22; Bayan Muna, et al.
Petition (G.R. No. 212444), p. 6.
28 Senate Resolution No. 105 dated November 10, 2015.

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protection of a public right, in which they have a personal
interest as affected members of the general public.29
The petitioners likewise claim that the EDCA requires the
disbursement of public funds and the waiver of the payment of
taxes, fees and rentals; thus, the petitioners have the standing to sue
as taxpayers.30
They lastly claim that the exchange of notes between the
Philippines’ Department of National Defense Secretary Voltaire
Gazmin and U.S. Ambassador Philip Goldberg31 — the final step
towards the implementation of the EDCA — rendered the presented
issues ripe for adjudication.
The respondents, in response, assert that the petitioners lack
standing,32 and that the petitions raise political questions that are
outside the Court’s jurisdiction to resolve.33
They also argue that the issues the petitions raise are premature.34
The EDCA requires the creation of separate agreements to carry out
separate activities such as joint exercises, the prepositioning of
materiel, or construction activities. At present, these separate
agreements do not exist. Thus, the respondents state that the
petitioners are only speculating that the agreements to be forged
under the EDCA would violate our laws. These speculations cannot
be the basis for a constitutional challenge.
II.A. Locus Standi

The ponencia holds that the petitioners do not have the requisite
standing to question the constitutionality of the EDCA, but chooses
to give due course to the petitions because
_______________
29 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 9-10.
30 Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22.
31 Id., at p. 19.
32 OSG Consolidated Comment, pp. 3-5.
33 Id., at pp. 5-7.
34 Id., at pp. 7-8.

538


of the transcendental importance of the issues these petitions
raise.35 In effect, the ponencia takes a liberal approach in
appreciating the threshold issue of locus standi.
I agree with the ponencia’s ultimate conclusions on the threshold
issues raised. I agree as well that a justiciable issue exists that the
Court can pass upon, although on both counts I differ from the
ponencia’s line of reasoning. Let me point out at the outset, too, that
judicial review is only an exercise of the wider judicial power that
Article VIII, Section 1 of the Constitution grants and defines. One
should not be confused with the other.
Judicial review is part of the exercise of judicial power under
Article VIII, Section 1 of the Constitution, particularly when it is
exercised under the judiciary’s expanded power (i.e., when courts
pass upon the actions of other agencies of government for the grave
abuse of discretion they committed), or when the Supreme Court
reviews, on appeal or certiorari, the constitutionality or validity of
any law or other governmental instruments under Section 5(2)(a)
and (b) of Article VIII of the Constitution.
A basic requirement is the existence of an actual case or
controversy that, viewed correctly, is a limit on the exercise of
judicial power or the more specific power of judicial review.36
Whether such case or controversy exists depends on the existence
of a legal right and the violation of this right, giving rise to a dispute
between or among adverse parties.37 Under the expanded power of
judicial review, the actual case or controversy arises when an official
or agency of government is
_______________
35 Ponencia, pp. 327-337.

36 Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014, 721 SCRA 146, 278-
279.
37 Id., at pp. 279-280.

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alleged to have committed grave abuse of discretion in the
exercise of its functions.38
Locus standi is a requirement for the exercise of judicial review39
and is in fact an aspect of the actual case or controversy requirement
viewed from the prism of the complaining party whose right has
been violated.40
When a violation of a private right is asserted, the locus standi
requirement is sharp and narrow because the claim of violation
accrues only to the complainant or the petitioner whose right is
alleged to have been violated.41
On the other hand, when a violation of a public right is asserted
— i.e., a right that belongs to the public in general and whose
violation ultimately affects every member of the public — the locus
standi requirement cannot be sharp or narrow; it must correspond in
width to the right violated. Thus, the standing of even a plain citizen
sufficiently able to bring and support a suit, should be recognized as
he or she can then be deemed to be acting in representation of the
general public.42
_______________
38 See Separate Opinion of J. Brion in Imbong v. Ochoa, Jr., id., at pp. 489-491.
39 Galicto v. Aquino III, 683 Phil. 141, 170; 667 SCRA 150, 187 (2012).
40 Id.
41 See David v. Macapagal-Arroyo, 552 Phil. 705; 489 SCRA 160 (2006), where
the Court held that in private suits, standing is governed by the “real parties-in-
interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that “every action must be prosecuted or defended in the
name of the real party-in-interest.” Accordingly, the “real party-in-interest” is “the
party who stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit.” Succinctly put, the plaintiff’s standing is based on
his own right to the relief sought.
42 De Castro v. Judicial and Bar Council, 629 Phil. 629, 680; 615 SCRA 666,
725 (2010).

540


Transcendental importance is a concept (a much abused one) that
has been applied in considering the requirements for the exercise of
judicial power.43 To be sure, it may find application when a public
right is involved because a right that belongs to the general public
cannot but be important.44 Whether the importance rises to the level
of being transcendental is a subjective element that depends on the
user’s appreciation of the descriptive word “transcendental” or on
his or her calibration of the disputed issues’ level of importance.
In either case, the use of transcendental importance as a
justification is replete with risks of abuse as subjective evaluation is
involved.45 To be sure, this level of importance can be used as
justification in considering locus standi with liberality,46 but it can
never be an excuse to find an actual controversy when there is none.
To hold otherwise is to give the courts an unlimited opportunity for
the exercise of judicial power — a situation that is outside the
Constitution’s intent in the grant of judicial power.
_______________
43 See Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 634; 338
SCRA 81, 101 (2000), citing Tatad v. Secretary of the Department of Energy, G.R.
No. 124360, November 5, 1997, 281 SCRA 330, 349, citing Garcia v. Executive
Secretary, G.R. No. 101273, July 3, 1992, 211 SCRA 219; Osmeña v. COMELEC,
G.R. No. 100318, July 30, 1991, 199 SCRA 750; Basco v. PAGCOR, G.R. No. 91649,
May 14, 1991, 197 SCRA 52; and Araneta v. Dinglasan, 84 Phil. 368 (1949).
44 Initiatives for Dialogue and Empowerment through Alternative Legal Services,
Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation
(PSALM), G.R. No. 192088, October 9, 2012, 682 SCRA 602, 633-634.
45 See Separate Opinion of J. Brion in Cawad v. Abad, G.R. No. 207145, July 28,
2015, 764 SCRA 1, citing Quinto v. COMELEC, G.R. No. 189698, December 1,
2009, 606 SCRA 258, 276 and GMA Network, Inc. v. COMELEC, G.R. No. 205357,
September 2, 2014, 734 SCRA 88, 125-126.
46 See Chamber of Real Estate and Builders’ Association, Inc. (CREBA) v.
Energy Regulatory Commission (ERC), 638 Phil. 542, 556-557; 624 SCRA 556, 570
(2010), where the Court provided “instructive guides” as determinants in determining
whether a matter is of transcendental importance, namely: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear case of disregard
of a constitutional or statutory prohibition by the

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In the present cases, a violation of the Constitution, no less, is
alleged by the petitioners through the commission of grave abuse of
discretion. The violation potentially affects our national sovereignty,
security, and defense, and the integrity of the Constitution —
concerns that touch on the lives of the citizens as well as on the
integrity and survival of the nation. In particular, they involve the
nation’s capability for self-defense; the potential hazards the nation
may face because of our officials’ decisions on defense and national
security matters; and our sovereignty as a nation as well as the
integrity of the Constitution that all citizens, including the highest
officials, must protect.
In these lights, I believe that the issues involved in the present
case are so important that a plain citizen sufficiently knowledgeable
of the outstanding issues, should be allowed to sue. The petitioners
— some of whom are recognized legal luminaries or are noted for
their activism on constitutional matters — should thus be
recognized as parties with proper standing to file and pursue their
petitions before this Court.

II.B. Ripeness of the Issues Raised for Adjudication

I agree with the ponencia’s conclusion that the cases before this
Court, to the extent they are anchored on the need for Senate
concurrence, are ripe for adjudication. My own reasons for this
conclusion are outlined below.
Like locus standi, ripeness for adjudication is an aspect of the
actual case or controversy requirement in the exercise of
_______________
public respondent agency or instrumentality of the government; and (3) the lack of
any other party with a more direct and specific interest in the questions being raised.

542


judicial power.47 The two concepts differ because ripeness is
considered from the prism, not of the party whose right has been
violated, but from the prism of the actual violation itself.
Of the two basic components of actual case or controversy,
namely, the existence of a right and the violation of that right,
ripeness essentially addresses the latter component.48 That a right
exists is not sufficient to support the existence of an actual case or
controversy; the right must be alleged to have been violated to give
rise to a justiciable dispute. In other words, it is the fact of violation
that renders a case ripe,49 assuming of course the undisputed
existence of the right violated.
In the present cases, Article VIII, Section 25 of the Constitution
lays down in no uncertain terms the conditions under which foreign
military bases, troops, and facilities may be allowed into the
country: there should at least be the concurrence of the Senate.
Under these terms, the refusal to allow entry of foreign military
bases, troops, and facilities into the country without the required
Senate concurrence is a prerogative that the people of this country
adopted for themselves under their Constitution: they want
participation in this decision, however indirect this participation
might be. This prerogative is exercised through the Senate; thus, a
violation of this constitutional prerogative is not only a transgression
against the Senate but one against the people who the Senate
represents.
The violation in this case occurred when the President ratified the
EDCA as an executive agreement and certified to the other
contracting party (the U.S.) that all the internal processes have been
complied with, leading the latter to believe that the agreement is
already valid and enforceable. Upon
47 Supra note 36 at p. 280.

48 Id.
49 Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 481; 568 SCRA 402, 451
(2008).

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such violation, the dispute between the President and the Filipino
people ripened.
The same conclusion obtains even under the respondents’
argument that the constitutionality of the EDCA is not yet ripe for
adjudication, since it requires the creation of separate agreements to
carry out separate activities such as joint exercises, the
prepositioning of materiel, or construction activities. To the
respondents, the petitioners are merely speculating on their claim of
unconstitutionality since these separate agreements do not yet exist.
Indeed, issues relating to agreements yet to be made are not, and
cannot be, ripe for adjudication for the obvious reason that they do
not yet exist. The question of the EDCA’s constitutionality, however,
does not depend solely on the separate agreements that will
implement it. The fact that an executive agreement had been entered
into, not a treaty as required by Article XVIII, Section 25 of the
Constitution, rendered the agreement’s constitutional status
questionable. Thus, when the exchange of notes that signaled the
implementation of the EDCA took place, the issue of its compliance
with the constitutional requirements became ripe for judicial
intervention under our expanded jurisdiction.

II.C. The Political Question Doctrine

Another threshold issue that this Court must settle at the outset,
relates to the political question doctrine that, as a rule, bars any
judicial inquiry on any matter that the Constitution and the laws
have left to the discretion of a coordinate branch of government for
action or determination.50
The respondents raise the political question issue as part of their
defense, arguing that the issues the petitioners raise are
_______________
50 Bondoc v. Pineda, 278 Phil. 784; 201 SCRA 792 (1991).

544


policy matters that lie outside the Court’s competence or are
matters where the Court should defer to the Executive.51
The political question bar essentially rests on the separation of
powers doctrine that underlies the Constitution.52 The courts cannot
interfere with questions that involve policy determination
exclusively assigned to the political departments of the
government.53The American case of Baker v. Carr54 best describes
the standards that must be observed in determining whether an issue
involves a political question, as follows:

Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
one question.55
From among these tests, the presence or absence of constitutional

standards is the most relevant under the circumstances of the present
consolidated cases.
_______________
51 Javellana v. Executive Secretary, 151-A Phil. 36, 131; 50 SCRA 30, 140
(1973), citing In Re McConaughy, 119 N.W. 408, 417.
52 See Garcia v. Executive Secretary, 602 Phil. 64, 73-77; 583 SCRA 119, 133-
134 (2009).
53 Id.
54 369 U.S. 186 (1962).
55 Id., at p. 217.

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After analyzing the issues raised, I find the respondents’ position
partly erroneous and partly premature for a political question
doctrine ruling.
This conclusion proceeds from my recognition that a distinction
should be drawn in recognizing the constitutional issues before us,
some of which are procedural in character while others are
substantive ones that require the application of different
constitutional provisions.
The petitioners primarily question the constitutional validity of
the EDCA for violation of Article XVIII, Section 25 of the 1987
Constitution. They challenge, as well, substantive provisions of the
EDCA, among them, those relating to the grant of
telecommunication privileges and tax exemptions to American
visiting forces, and the EDCA provisions that would allegedly allow
the entry of nuclear weapons into the country.
That the EDCA is an agreement that requires concurrence by the
Senate before it can be considered valid and enforceable, is an issue
that is essentially procedural as it requires that steps be taken before
an international agreement can be considered fully valid and
enforceable. It is an issue extrinsic to the terms of the EDCA and is
properly a threshold issue that must be resolved before the
substantive challenges to the EDCA’s validity can be addressed.
Aside from being procedural, the issue relates as well to the
standard set by the Constitution that delineates when an international
agreement should be a treaty subject to Senate concurrence. The
presence of this standard renders the determination of the medium to
be used in forging an international agreement — whether as a treaty
or as an executive agreement an issue within the competence and
authority of the courts to resolve in their role as guardians of the
Constitution.56
_______________
56 Dueñas, Jr. v. House of Representatives Electoral Tribunal, 610 Phil. 730, 742;
593 SCRA 316, 345 (2009); Lambino v. Commission on Elections, 536 Phil. 1, 111;
505 SCRA 160, 264 (2006).

546


Thus, the main issue the petitioners pose — the constitutional
status of the EDCA as an executive agreement in light of the
mandate of Article XVIII, Section 25 of the Constitution — is not a
political question outside the judiciary’s competence and authority to
resolve. The respondents’ argument on this point is therefore
erroneous.
If indeed a referral to the Senate is required and no referral has
been made, then the EDCA is constitutionally deficient so that its
terms cannot be enforced. This finding renders further proceedings
on the merits of the substantive issues raised, pointless and
unwarranted. There is likewise no point in determining whether the
substantive issues raised call for the application of the political
question doctrine.57
On the other hand, the examination of the EDCA’s substantive
contents may be ripe and proper for resolution if indeed the EDCA
can properly be the subject of an executive agreement. It is at that
point when the respondents may claim that the substantive contents
of the EDCA involve policy matters that are solely for the President
to determine and that the courts may not inquire into under the
separation of powers principle.58 It is only at that point when the
application of the political question doctrine is called for.
In these lights (particularly, my position on the merits of the
procedural issue raised), I find a ruling on the application of the
political question doctrine to the substantive issues raised premature
and unripe for adjudication; any ruling or discussion I may make
may only confuse the issues when a proper petition on the
constitutionality of the substantive contents of EDCA is filed.

III. The Facts

III.A. Historical, International and Regional Contexts
_______________
57 See Constitution, Article VII, Section 21.

58 Supra note 50.

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III.A(1) The Early Years of
Philippines-U.S. Relationship

Active Philippine-American relations started in 1898, more than
a century ago, when Commodore George Dewey and his armada of
warships defeated the Spanish navy in the Philippines in the Battle
of Manila Bay.59 The sea battle was complemented by land assaults
by Philippine forces who were then in open rebellion against Spain
under the leadership of General Emilio Aguinaldo.60
The complementary effort started a relationship that, from the
Philippine end, was characterized by hope of collaboration and
assistance in the then colony’s quest for independence from Spain.61
But the fulfillment of this hope did not come to pass and was in fact
shattered when America, with its own
_______________
59 On order of then U.S. Secretary of the Navy, Theodore Roosevelt, Commodore
Dewey attacked the Spanish fleet in the Philippines. At noon of May 1, 1898,
Commodore Dewey’s ships had destroyed the Spanish fleet at the Battle of Manila
Bay. See Bayan Muna, et al. Petition (G.R. No. 212444), p. 11, citing
http://www.history.com/this-day-in-history/battle-of-manila-bay.
See Brzesinski, Zbigniew, The Grand Chessboard – American Primacy and its
Geostrategic Imperatives (1997).
See also Weir, Fraser, A Centennial History of Philippine Independence, 1898-
1998: Spanish-American War – War of Philippine Independence 1898-1901.
University of Alberta, available at https://www.ualberta.ca/~vmitchel/fw4.html; The
Spanish-American War, 1898, United States Department of State, available at
https://history.state.gov/milestones/1866-1898/spanish-american-war; and The
Spanish-American War in the Philippines (1989), American Experience, available at
http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX87.html.
60 In the early part of 1898, the relations between the U.S. and Spain deteriorated.
As the war became imminent, Commodore George Dewey, the commander of the
U.S. Asiatic Squadron, had discussion with Emilio Aguinaldo’s government in exile
in Singapore and Hong Kong. See Weir, id.
61 Id.

548


geopolitical interests in mind, decided to fight the Philippine
forces and to keep the Philippines for itself as a colony. The
American objective was fully realized under the Treaty of Paris
between Spain and the U.S., when the Philippines was handed by
Spain to the U.S. as a colony.62
The result, of course, was inevitable as the Philippine forces were
not then fighting for a change of masters but for independence. The
Philippine forces fought the Americans in the Philippine-American
war, and lost.63
Thus, a new colonizer took Spain’s place. Unlike the Spanish
colonial rule, however, one redeeming feature of the American
colonial rule was the introduction of the concepts of democracy and
governance.
As a colony, the Philippines, played a distinct role as the
American outpost in the Far East as the American geopolitical
interests slowly grew from the First World War years. By the end of
the Second World War, the U.S.’ international primacy was
confirmed as the leader of the victor-nations. This international
leadership role became sole leadership when the Soviet Union
collapsed in the late 1980s. Thus, the U.S. now stands as the only
global superpower whose military, economic, cultural, and
technological reach and influence extend over all continents.64
_______________
62 Treaty of Peace Between the United States and Spain (December 10, 1898),
Article III:
“Spain cedes to the United States the archipelago known as the Philippine Islands
x x x.” See Yale Law School, The Avalon Project, Treaty of Peace between the United
States and Spain, available at http://avalon.law.yale.edu/19th_century/sp1898.asp.
63 Constantino, Renato, The Philippines: A Past Revisited,pp. 228-229 (1975).
64 See Brzesinski, supra note 59 at pp. 3-29.
According to Brzesinski, America stands supreme in the four decisive domains of
global power: (1) militarily, it has an unmatched global reach; (2) economically, it
remains the main locomotive of global growth; (3) technologically, it retains the
overall lead in the

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III.A(2) The Post-W.W.II Years

It was soon after Philippine independence, as the U.S.
superpower status was rising, that the U.S. and the Philippines
forged the Military Bases Agreement of 1947 (1947 MBA) and the
1951 MDT. The 1947 MBA was the agreement specific to the U.S.
bases, troops, and facilities in the Philippines,65 while the 1951
MDT was the overarching document,
_______________
cutting-edge areas of innovation; and (4) culturally, despite some crassness, it

enjoys an appeal that is unrivaled. The combination of all four makes America the
only comprehensive superpower.
Brzesinski traced the trajectory of the US’s rise to global supremacy beginning
from World War I (WWI) to the end of the Cold War, noting that the U.S.’s
participation in WWI introduced it as a new major player in the international arena.
While WWI was predominantly a European war, not a global one, its self-destructive
power marked the beginning of the end of Europe’s political, economic and cultural
preponderance over the rest of the world. The European era in world politics ended in
the course of World War II (WWII), the first truly global war. Since the European (i.e.,
Germany) and the Asian (i.e., Japan) were defeated, the US and the Soviet Union, two
extra-European victors, became the successors to Europe’s unfulfilled quest for global
supremacy.
The contest between the Soviet Union and the US for global supremacy dominated
the next fifty years following WWII. The outcome of this contest, the author believes,
was eventually decided by nonmilitary means: political vitality, ideological flexibility,
economic dynamism, and cultural appeal. The protracted competition, in the end,
eventually tip the scales in America’s favor simply because it was much richer,
technologically much more advanced, militarily more resilient and innovative,
socially more creative and appealing.
65 See Bayan Muna, et al. Petition (G.R. No. 212444), pp. 13-14; and Kilusang
Mayo Uno, et al. Petition-in-Intervention, p. 7.
See also Shalom, Stephen, Securing the U.S.-Philippine Military Bases Agreement
of 1947, William Paterson University, available at
http://www.wpunj.edu/dotAsset/209673.pdf; Paterno, Robert, American Military
Bases in the Philippines: The Brownell Opinion, available at
http://philippinestudies.net/ojs/index.php/ps/article/view

550


entered into and ratified by the two countries as a treaty, to define
the Philippine-American defense relationship in case of an armed
attack by a third country on either of them.66 As its title directly
suggests, it is a defense agreement.
_______________
File/2602/5224; Gregor, James, The Key Role of U.S. Bases in the Philippines, The
Heritage Foundation, available at
http://www.heritage.org/research/reports/1984/01/the-key-role-of-us-bases-in-the-
philippines; Lim, Maria Teresa, “Removal Provisions of the Philippine-United States
Military Bases Agreement: Can the United States Take it All” 20 Loyola of Los
Angeles Law Review 421, 421-422. See Greene, Fred, The Philippine Bases:
Negotiating For the Future, p. 4 (1988).
The 1947 Military Bases Agreement was signed by the Philippines and the U.S. on
March 14, 1947; it entered into force on March 26, 1947 and was ratified by the
Philippine President on January 21, 1948. See Bevans, Charles, Treaties and Other
International Agreements of the United States of America (1776-1949), available at
United States Department of State, https://books.google.com.ph/books?
id=MUU6AQAA1AAJ&pg=PA55&1pg=PA55&dq=17+UST+1212;+T1AS+6084&source=bl&ots=VBt1V34ntR&sig=X2yYCbWVfJqF_o69-
CcyiP88zw0&hl=en&sa=X&ved=0ahUKEwiKg-jXq8LJAhXRBY4K
HSicDeAQ6AE1GzAA#v=onepage&q=17%20UST%201212%3B%20TIAS%206084&f=false.
The Philippine government also agreed to enter into negotiations with the U.S., on
the latter’s request, to: expand or reduce such bases, exchange those bases for others,
or acquire additional base areas. The agreement allowed the U.S. full discretionary
use of the bases’ facilities; gave criminal jurisdiction over U.S. base personnel and
their dependents to the U.S. authorities irrespective of whether the alleged offenses
were committed on or off the base areas. See Gregor, id.
66 The Philippines and the U.S. signed the MDT on August 30, 1951. It came into
force on August 27, 1952 by the exchange of instruments of ratification between the
parties. See Mutual Defense Treaty, U.S.-Philippines, August 30, 1951, 177 U.N.T.S.
134, available at https://treaties.un.org/doc/Publication/UNTS/Volume%20177
/volume-177-1-2315-English.pdf. See also Bayan v. Gazmin petition (G.R. No.
212444), p. 14; Saguisag v. Executive Secretary Ochoa petition (G.R. No. 212426), p.
8; and Kilusang Mayo Uno, et al. Petition-in-

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The solidity of the R.P.-U.S. relationship that started in the
colonizer-colony mode, shifted to defense/military alliance (through
the MBA, MDT, and their supplementary agreements) after
Philippine independence, and began to progressively loosen as the
Philippines tracked its own independent path as a nation. Through
various agreements,67 the American
_______________
Intervention, p. 7. It was concurred in by the Philippine Senate on May 12, 1952;

and was advised and consented to by the U.S. Senate on March 20, 1952, as reflected
in the U.S. Congressional Record, 82nd Congress, Second Session, Vol. 98, Part 2,
pp. 2594-2595. See Nicolas v. Romulo, 598 Phil. 262; 578 SCRA 438 (2009).
67 1956: The Garcia-Bendetsen conference resolved the issue of jurisdiction in
the American bases. The US began to recognize sovereignty of the Philippine
government over the base lands. See Exchange of Notes, U.S.-Philippines, December
6, 1956, available at
http://elibrary.judiciary.gov.ph/thebookshelf/docmonth/Dec/1956/35.
1959: Olongapo, which was then an American territory, was officially turned over
by the US to the Philippines. Over the years, 17 of the 23 military installations were
also turned over to the Philippines. See Memorandum of Agreement, U.S.-Philippines,
October 12, 1959, available at
http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/35/11192.
1965: An agreement was signed revising Article XIII of the treaty wherein the US
will renounce exclusive jurisdiction over the on-base offenses and the creation of a
joint criminal jurisdiction committee. See Exchange of Notes, U.S.-Philippines,
August 10, 1965, available at
http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/35/10934.
1966: The Ramos-Rusk Agreement reduced the term of the MBA to 25 years
starting from that year. See Exchange of Notes, U.S.-Philippines, September 16, 1966,
available at http://elibrary.jud
iciary.gov.ph/thebookshelf/showdocs/35/10859.
1979: The US reaffirmed Philippine sovereignty over the basis and placed each
base under command of a Philippine base commander. See Office of the President of
the Philippines, Official Week in Review, Official Gazette of the Republic of the
Philippines, 75(1), iii-iv (1979), available at http://www.gov.ph/1979/01/08/official-
week-in-review-january-1-january-7-1979/.

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hold and the length of stay of American military bases in the
Philippines progressively shrunk.
The death knell for the U.S. military bases started sounding when
a new Philippine Constitution was ratified in 1987. The new
Constitution provides that after the expiration of the agreement on
military bases, no foreign military bases, troops or facilities shall
be allowed except through a treaty concurred in by the Senate or
with the direct consent of the Filipino people if Congress would
require this mode of approval.68
The actual end of the military bases came in 1991 when the 1947
MBA expired with no replacement formal arrangement in place
except the 1951 MDT.69 For some years, R.P.-U.S. relationship on
defense/military matters practically froze. The thaw only came when
the 1998 VFA was negotiated and agreed upon as a treaty that the
Philippine Senate concurred in.
III.A(3) The U.S.’s “Pivot to Asia” Strategy

During the latter part of the first term of the Obama
Administration, the U.S. announced a shift in its global strategy in
favor of a military and diplomatic “pivot” or “rebalance” toward
Asia.70 The strategy involved a shift of the U.S.’s diplomatic,
economic, and defense resources to Asia, made ur-
_______________
68 Constitution, Article XVIII, Section 25.

69 On September 16, 1991, the Philippine Senate voted to reject a new treaty that
would have extended the presence of U.S. military bases in the Philippines. See
Bayan (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 632; 342 SCRA
449, 464 (2000), citing the Joint Report of the Senate Committee on Foreign Relation
and the Committee on National Defense and Security on the Visiting Forces
Agreement.
70 United States Department of Defense, Sustaining U.S. Global Leadership:
Priorities for 21st Century Defense, p. 2 (January 2012), available at
http://archive.defense.gov/news/Defense_Strategic_Guidance.pdf.

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gent by “the rise of Chinese regional power and influence, and
China’s apparent inclination to exercise its burgeoning military
power in territorial disputes with its neighbors.”71 These disputes
affected sea lanes that are vital to the U.S. and its allies; hence, the
U.S. was particularly concerned with their peaceful resolution.72
Critical to the strategy is the projection of American power and
influence worldwide.
The key to the new strategy in the military-political area is
“presence: forward deployment of U.S. military forces; a significant
tempo of regional diplomatic activity (including helping Asian
countries resolve disputes that they cannot resolve themselves); and
promoting an agenda of political reform where it is appropriate.”73
This meant, among others, the strengthening of American military
alliance with Asian countries, including the Philippines.
The “pivot” has a direct relevance to Philippine concerns since it
was prompted, among others, by “China’s growing military
capabilities and its increasing assertiveness of claims to disputed
maritime territory, with implications for freedom of navigation and
the United States’ ability to project power in the region.”74 The
opening of new areas for military coop-
_______________
71 Hemmings, John, Understanding the U.S. Pivot: Past, Present, and Future,
34(6) Royal United Services Institute Newsbrief (November 26, 2014), available at
https://hemmingsjohn.wordpress.com/2014/11/27/understanding-the-us-pivot-past-
present-and-future/.
72 Id.
73 Bush, Richard, No rebalance necessary: The essential continuity of U.S. policy
in the Asia-Pacific, Brookings Institution (March 18, 2015), available at
http://www.brookings.edu/blogs/order-from-chaos/posts/2015/18-value-of-continuity-
us-policy-in-asia-pacific.
74 US Congressional Research Service, Pivot to the Pacific? The Obama
Administration’s “Rebalancing” Toward Asia, p. 2, March 28, 2012, available at
http://www.fas.org/sgp/crs/natsec/R42448.pdf.

554

eration with the Philippines is among the announced features of
the “pivot.”75

III.A(4) The EDCA

It was soon after the launch of the “pivot” strategy that the
initiatives for the EDCA came. The EDCA, of course, did not
introduce troops into the country for the first time, as the 1998 VFA
already ushered in the presence of U.S. military troops on a
rotational but temporary basis.
What the EDCA brought with it was the concept of “agreed
locations” to which the U.S. has “unimpeded access” for the
refueling of aircraft; bunkering of ships; pre-positioning and
storage of equipment, supplies and materials; the introduction of
military contractors into the agreed locations; and the stationing
and deployment point for troops.76
In these lights, the confirmed and valid adoption of the EDCA
would make the Philippines an active ally participating either as a
forward operating site (FOS) or Cooperative Security Location
(CSL) in the American “pivot” strategy or, in blunter terms, in the
projection and protection of American worldwide power. FOS and
CSL shall be explained under the proper topic below.
All these facts are recited to place our reading of the EDCA in
proper context — historically, geopolitically, and with a proper
appreciation of the interests involved, both for the Philippines and
the U.S.
_______________
75 United States Department of Defense, The Asia-Pacific Maritime Security

Strategy: Achieving U.S. National Security Objectives in a Changing Environment, p.
23 (2015), available at
http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-
P_Maritime_SecuritY_Strategy-08142015-1300-FlNALFORMAT.PDF.
76 EDCA, Article III.

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The U.S. is in Asia because of the geopolitical interests and the
world dominance that it seeks to maintain and preserve.77 Asia is
one region that has been in a flux because of the sense of
nationalism that had lain dormant among its peoples, the economic
progress that many of its countries are experiencing as the economic
winds shift to the East, and the emergence of China that — at the
very least — is now gradually being recognized as a regional power
with the potential for superpower status.78 The Philippines itself is
encountering territorial problems with China because of the latter’s
claims in the West Philippine Sea; the Philippines has chosen the
path of peace in the dispute through international arbitration.79
EDCA and Article XVIII, Section 25 of the Constitution, in
their larger regional signification, mean that the Philippines would
thereafter, not only be bound as an American ally under the 1951
MDT, but as an active participant as “pivot” and projection points
in the grand American strategy in Asia.
How the Philippines will react to all these developments is
largely for the Executive and the people (through the Legislature) to
determine. In making its decisions, they must — at the very least —
show one and all that our country is entitled to respect as an
independent and sovereign nation. This respect must come
primarily from within the Philippines and the Filipinos
themselves, from the nation’s own sense of self-respect: in negative
terms, the Filipino nation cannot attain self-respect unless it shows
its respect for its own
_______________
77 Vine, David, Base Nation: How U.S. Military Bases Abroad Harm America
and the World, pp. 300-301 (2015).
78 Brzesinski, supra note 59 at pp. 151-193.
79 The arbitration case was filed before the Permanent Court of Arbitration on
January 22, 2013. See Republic of the Philippines v. The People’s Republic of China,
Permanent Court of Arbitration, available at http://www.pca-
cpa.org/showpage65f2.html?pag_id= 1529.

556


Constitution — the only instrument that binds the whole
nation.

IV. The President’s Role
in Governance and its Limits

This discussion is made necessary by the ponencia’s patent
misconceptions regarding the role the President plays in governance
as chief executive and implementor of policies and the laws.

IV.A. The Ponencia and My Objections

In upholding the constitutionality of the EDCA, the ponencia
holds that the President’s power and duty to ensure the faithful
execution of our laws include the defense of our country as the
commander-in-chief of the country’s armed forces.80 It contends that
these powers, combined with the President’s capacity as the
country’s sole organ in foreign affairs, empower the President to
enter into international agreements with other countries and give
him the discretion to determine whether an international agreement
should be in the form of a treaty or executive agreement.
The patent misconception begins when the ponencia asserts that
the President cannot function with crippled hands: “the manner of
the President’s execution of the law, even if not expressly granted by
the law, is justified by necessity and limited only by law since he
must ‘take necessary and proper steps to carry into execution the
law.’”81 It further adds that it is the President’s prerogative to do
whatever is legal and necessary for the Philippines’ defense
interests.82
While acknowledging the Constitution’s command that the entry
of foreign military bases, troops, and facilities must be
_______________
80 Ponencia, pp. 337-341.

81 Id., at p. 340.
82 Id., at p. 341.

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in a treaty, the ponencia asserts that the EDCA should be
examined in relation with this requirement alone, as the President’s
wide authority in external affairs should be subject only to the
limited amount of checks and restrictions under the Constitution.83
It is within this framework that the ponencia concludes that the
requirement under Article XVIII, Section 25 of the Constitution is
limited to the initial entry of foreign military bases, troops, and
facilities. Thus, once a treaty has allowed the entry of foreign
military bases, troops, and facilities into the Philippines, the
ponencia posits that the President may enter into subsequent
executive agreements that involve “detail adjustments” of existing
treaties.84
I cannot fully agree with the ponencia’s approach and with its
conclusions.
First and foremost, the ponencia overlooks that as Chief
Executive, the President’s role is not simply to execute the laws.
This important function is preceded by the President’s foremost
duty to preserve and defend the Constitution, the highest law of the
land. The President’s oath, quoted by the ponencia itself, in fact,
states:

I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice
President or Acting President) of the Philippines, preserve
and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the Nation.
So help me God.85 [Emphasis supplied]
The supremacy of the Constitution means that in the performance

of his duties, the President should always be guided and kept in
check by the safeguards that were crafted by the
_______________
83 Id., at pp. 337-375.

84 Id., at pp. 340-355, 375-446.
85 Constitution, Article VII, Section 5.

558


framers of the Constitution and ratified by the people. The
Constitution prescribes the limitations to the otherwise awesome
powers of the Executive who wields the power of the sword and
shares in the power of the purse.
I also do not agree that constitutional limitations, such as the
need for Senate concurrence in treaties, can be disregarded if they
unduly “tie the hands” of the President.86 These limitations are
democratic safeguards that place the responsibility over national
policy beyond the hands of a single official. Their existence is the
hallmark of a strong and healthy democracy. In treaty-making, this is
how the people participate — through their duly-elected Senate —
or directly when the Congress so requires. When the Constitution so
dictates, the President must act through the medium of a treaty and
is left with no discretion on the matter. This is the situation under
Article XVIII, Section 25 of the Constitution, whose application is
currently in dispute.
Let it be noted that noble objectives do not authorize the
President to bypass constitutional safeguards and limits to his
powers. To emphasize this point, we only need to refer to Article VI,
Section 23(2) of the Constitution:

(2) In times of war or other national emergency, the
Congress may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by
resolution of the Congress, such
_______________
86 Although the ponencia recognized constitutional provisions that restrict or
limit the President’s prerogative in concluding international agreements (see
ponencia, pp. 357-371), it contradictorily asserts that “[n]o 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, Sec. 25”
and that “[t]he President had the choice to enter into the EDCA by way of an
executive agreement or a treaty.” See ponencia, p. 371.

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power shall cease upon the next adjournment thereof. [Emphasis
supplied]
Thus, the President cannot, by himself, usurp the prerogatives of
a coequal branch to carry out what he believes is necessary for the
country’s defense interests. His position as the Commander-in-Chief
of the Armed Forces of the Philippines (AFP) does not give him the
sole discretion to increase our military’s defensive capabilities; his
role as commander-in-chief only gives him control of the military’s
chain of command. It grants him the power to call out the armed
forces to prevent/suppress lawless violence, invasion, insurrection,
or rebellion.87
The modernization of the military, in particular, is a joint
responsibility of the political branches of the State because the
Congress is responsible for crafting relevant laws88 and for
allocating funds for the AFP through the General Appropriations
Act.89 The increase or decrease of funds and the extent of defense
initiatives to be undertaken are national policy matters that the
President cannot undertake alone.
IV.B. The President’s Foreign Relations

Power should be Interpreted in the Con-
text of the Separation of Powers Doctrine

We cannot also interpret a provision in the Constitution in
isolation and separately from the rest of the Constitution. Similarly,
we cannot determine whether the Executive’s acts had been
committed with grave abuse of discretion without considering his
authority in the context of the powers of the other branches of
government.
_______________
87 Constitution, Article VII, Section 18.

88 The Constitution vests legislative power upon the Congress of the Philippines.
Thus, the Congress has the power to determine the subject matters it can legislate
upon. See Constitution, Article VI, Section 1.
89 Constitution, Article VI, Section 25.

560


While the President’s role as the country’s lead official in the
conduct of foreign affairs is beyond question, his authority is not
without limit. When examined within the larger context of how our
tripartite system of government works (where each branch of
government is supreme within its sphere but coordinate with the
others), we can see that the conduct of foreign affairs, particularly
when it comes to international agreements, is a shared function
among all three branches of government.
The President is undeniably the chief architect of foreign policy
and is the country’s representative in international affairs.90 He is
vested with the authority to preside over the nation’s foreign
relations which involve, among others, dealing with foreign states
and governments, extending or withholding recognition, maintaining
diplomatic relations, and entering into treaties.91 In the realm of
treaty-making, the President has the sole authority to negotiate with
other States.92

IV.B(1) Separation of Powers
and the Treaty-Making Process

This wide grant of authority, however, does not give him the
license to conduct foreign affairs to the point of disregarding or
bypassing the separation of powers that underlies our established
constitutional system.
Thus, while the President has the sole authority to negotiate and
enter into treaties, Article VII, Section 21 of the 1987 Constitution at
the same time provides the limitation that two-thirds of the members
of the Senate should give their concurrence for the treaty to be valid
and effective.
_______________
90 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303, 317-318; 462
SCRA 622, 632 (2005).
91 Id.
92 Id.

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Notably, this limitation is a not a new rule; the legislative branch
of government has been participating in the treaty-making process
by giving (or withholding) its consent to treaties since the 1935
Constitution. Section 10(7), Article VII of the 1935 Constitution
provides:

Sec. 10. (7) The President shall have the power, with
the concurrence of two-thirds of all the Members of the
Senate, to make treaties x x x.

This tradition of legislative participation continued despite our
presidential-parliamentary form of government under the 1973
Constitution, that is markedly different from the tripartite form of
government that traditionally prevailed in the country. Section 14(1)
Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this
Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the Batasang
Pambansa.

That we have consistently included the participation of the
legislative branch in the treaty-making process is not without an
important reason: it provides a check on the Executive in the field of
foreign relations. By requiring the concurrence of the Legislature in
the treaties entered into by the President, the Constitution ensures a
healthy system of checks and balances necessary in the nation’s
pursuit of political maturity and growth.
Under this system, the functions of government are divided
among three branches of government, each one supreme within its
own sphere: the executive administers and enforces laws; the
legislature formulates and enacts laws; and the judiciary settles cases
arising out of the enforcement of these

562


laws.93 The requirement of Senate concurrence to the executive’s
treaty-making powers is a check on the prerogative of the Executive,
in the same manner that the Executive’s veto on laws passed by
Congress94 is a check on the latter’s legislative powers.
Even the executive agreements that the President enters into
without Senate concurrence has legislative participation — they are
implementations of existing laws Congress has passed or of treaties
that the Senate had assented to.95 The President’s authority to
negotiate and ratify these executive agreements springs from his
power to ensure that these laws and treaties are executed.96
The judicial branch of government’s participation in international
agreements is largely passive, and is only triggered when cases reach
the courts. The courts, in the exercise of their judicial power, have
the duty to ensure that the Executive and Legislature stay within
their spheres of competence;97 they ensure as well that constitutional
standards and limitations set by the Constitution for the Executive
and the Congress to follow are not violated.
Article VIII, Section 5 of the Constitution is even more explicit,
as it gives the Supreme Court the jurisdiction “to review by appeal
or certiorari all cases in which the constitutionality or validity of
any treaty, international or executive agreement, law x x x is in
question.”
Thus, entry into international agreements is a shared function
among the three branches of government. In this light and in the
context that the President’s actions should be viewed under our
tripartite system of government, I cannot agree

_______________
93 Angara v. Electoral Commission, 63 Phil. 139 (1936).

94 Constitution, Article VI, Section 27(2).
95 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333, 338-340; 3
SCRA 351, 357 (1961).
96 Constitution, Article VII, Sections 5 and 17.
97 Angara v. Electoral Commission, supra at pp. 157-159.

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with the ponencia’s assertion that the case should be
examined solely and strictly through the constitutional limitation
found in Article XVIII, Section 25 of the Constitution.

IV.B(2) Standards in Examining the President’s Treaty-
Making Powers

Because the Executive’s foreign relations power operates within
the larger constitutional framework of separation of powers, I find
the examination of the President’s actions through this larger
framework to be the better approach in the present cases. This
analytical framework, incidentally, is not the result of my original
and independent thought; it was devised by U.S. Supreme Court
Associate Justice Robert Jackson in his Concurring Opinion in
Youngstown Sheet & Tube Co. v. Sawyer.98
Justice Jackson’s framework for evaluating executive action
categorizes the President’s actions into three: first, when the
President acts with authority from the Congress, his authority is at
its maximum, as it includes all the powers he possesses in his own
right and everything that Congress can delegate.99
Second, “when the President acts in the absence of either a
congressional grant or denial of authority, he can only rely on his
own independent powers, but there is a [twilight zone where] he and
Congress may have concurrent authority, or where its distribution is
uncertain.”100 In this situation, presidential authority can derive
support from “congressional inertia, indifference or quiescence.”101
_______________
98 343 U.S. 579 (1952).

99 Id., at p. 635.
100 Id., at p. 637.
101 Id.

564


Third, “when the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest
ebb,”102 and the Court can sustain his actions “only by disabling the
Congress from acting upon the subject.”103
This framework has been recently adopted by the U.S. Supreme
Court in Medellin v. Texas,104 a case involving the President’s
foreign affairs powers and one that can be directly instructive in
deciding the present case.
In examining the validity of an executive act, the Court takes into
consideration the varying degrees of authority that the President
possesses. Acts of the President with the authorization of Congress
should have the “widest latitude of judicial interpretation”105 and
should be “supported by the strongest of presumptions.”106 For the
judiciary to overrule the executive action, it must decide that the
government itself lacks the power. In contrast, executive acts that
are without congressional imprimatur would have to be very
carefully examined.
IV.B(3) The Senate Objection to EDCA

as an Executive Agreement

In the present cases, the President’s act of treating the EDCA as
an executive agreement has been disputed by the Senate, although
the Senate is not an active party in the present cases.
_______________
102 Id.
103 Id., at pp. 637-638.
104 552 U.S. 491 (2008).
105 Id.; Youngstown Sheet & Tube Co. v. Sawyer, supra note 98 at p. 637.
106 Id.

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On November 10, 2015, the Senate sent the Supreme Court a
copy of Senate Resolution No. 1414107 expressing its sentiment that
the EDCA should have been entered into in the form of a treaty.
Furthermore, and as will be explained in the succeeding portions of
this Dissenting Opinion, the EDCA’s provisions are not all within
the terms of the two treaties properly ratified by the Senate — the
1951 MDT and 1998 VFA; hence, the President could not have
drawn his authority from these agreements.
Thus, contrary to the ponencia’s assertion that the President’s act
of treating the EDCA as an executive agreement should be subject to
the “least amount of checks and restrictions under the
Constitution,”108 this presidential action should actually be very
carefully examined, in light of the Senate’s own expressed
sentiments on the matter.
The mandatory character of the executive-legislative power
sharing should be particularly true with respect to the EDCA, as its
adoption signifies Philippine participation in America’s pivot
strategy by making our country one of the “pivot” or projection
points that would enforce America’s military strategy. In taking this
kind of step, the Senate must simply be there to give its consent, as
the Constitution envisions in situations involving the entry of
foreign military bases, troops, and facilities into the country.
In these lights, I propose that we examine the President’s act of
treating the EDCA not simply by the standard of whether it complies
with the limitation under Article XVIII,
_______________
107 Senate Resolution No. 1414 was entitled as the “Resolution expressing the
strong sense of the Senate that any treaty ratified by the President of the Philippines
should be concurred in by the Senate, otherwise the treaty becomes invalid and
ineffective.” It was signed by thirteen Senators: Senators Defensor-Santiago, Angara,
Cayetano, P., Ejercito, Estrada, Guingona III, Lapid, Marcos, Jr., Osmeña III,
Pimentel III, Recto, Revilla, Jr., and Villar. Available at
https://www.senate.gov.ph/listdata/2175018478!.pdf.
108 Ponencia, p. 375.

566


Section 25 of the Constitution, but in the context of how our
government functions, and of other relevant provisions in the
Constitution.

IV.C. Constitutional Standards in Allowing
the Entry of Foreign Military Bases, Troops,
and Facilities in the Philippines

IV.C(1) Article VII, Section 21 of the Con-
stitution and Treaty-Making
In general, the President’s foreign affairs power must be
exercised in compliance with Article VII, Section 21 of the
Constitution, which requires the submission of treaties the President
ratified, to the Senate for its concurrence. The Senate may either
concur in, or withhold consent to, the submitted treaties.
Significantly, not all the international agreements that the
President enters into are required to be sent to the Senate for
concurrence. Jurisprudence recognizes that the President may enter
into executive agreements with other countries,109 and these
agreements — under the proper conditions — do not require Senate
concurrence to be valid and enforceable in the Philippines.110
_______________
109 See Land Bank of the Philippines v. Atlanta Industries, Inc., G.R. No.
193796, July 2, 2014, 729 SCRA 12, 30-31, citing Bayan Muna v. Romulo, 656 Phil.
246, 269-274; 641 SCRA 244, 258 (2011); Neri v. Senate Committee on
Accountability of Public Officers and Investigations, 586 Phil. 135, 168; 549 SCRA
77, 105 (2008), citing Usaffe Veterans Association, Inc. v. Treasurer of the
Philippines, 105 Phil. 1030, 1038 (1959); Commissioner of Customs v. Eastern Sea
Trading, supra note 95.
110 Id.

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IV.C(2) Treaties and Executive Agreements under Article
VII, Section 21
Where lies the difference, it may well be asked, since both a
treaty and an executive agreement fall under the general title of
international agreement?
An executive agreement emanates from the President’s duty to
execute the laws faithfully.111 They trace their validity from existing
laws or from treaties that have been authorized by the legislative
branch of government.112 In short, they implement laws and treaties.
In contrast, treaties are international agreements that do not
originate solely from the President’s duty as the executor of the
country’s laws, but from the shared function that the Constitution
mandates between the President and the Senate.113 They therefore
need concurrence from the Senate after presidential ratification, in
order to fulfill the constitutional shared function requirement.114
Jurisprudential definitions of treaties and executive agreements
are conceptually drawn from these distinctions although in Bayan
Muna v. Romulo,115 we simply differentiated treaties from executive
agreements in this wise:

Article 2 of the Vienna Convention on the Law of Treaties:
An international agreement concluded between states in
written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation.
International agreements may be in the
_______________
111 Constitution, Article VII, Sections 5 and 17.

113 Constitution, Article VII, Section 21. See also Bayan Muna v. Romulo, supra
note 109 at pp. 269-270; p. 263.
114 Bayan Muna v. Romulo, id.
115 Id.

568


form of (1) treaties that require legislative concurrence
after executive ratification; or (2) executive agreements
that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal
with a narrower range of subject matters than treaties.116
[Emphases supplied]

Bayan Muna likewise did not distinguish between treaties and
executive agreements in terms of their binding effects on the
contracting States concerned.117 But neither one can contravene the
Constitution.
This ambiguity perhaps might have been the root of the general
statement that the Executive generally has the discretion to
determine whether an international obligation should be in the form
of a treaty or an executive agreement. This general statement,
however, is far from complete and should be qualified because the
Executive’s exercise of discretion is affected and should be dictated
by the demands of the enforceability of the obligations the
international agreement creates in the domestic sphere.
Between a treaty and an executive agreement, a treaty exists on a
higher plane as it carries the authority of the President and the
Senate.118 Treaties have the status, effect, and impact of statutory
law in the Philippines; they can amend or prevail over prior statutory
enactments.119
Executive agreements — which exist at the level of
implementing rules and regulations or administrative orders in the
_______________
116 Id., at p. 269; pp. 258-259.

117 Id.
118 Id., at p. 270; p. 259, citing Henkin, Foreign Affairs and the United States
Constitution, p. 224 (2nd ed., 1996), and Borchard, Edwin, Treaties and Executive
Agreements – Reply, Yale Law Journal, June 1945.
119 Id.

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domestic sphere — carry no such effect.120 They cannot
contravene statutory enactments and treaties and would be invalid if
they do so.121
Again, this difference in impact is traceable to the source of their
authority; since a treaty has the approval of both the President and
the Senate, it has the same impact as a statute. In contrast, since an
executive agreement springs from the President’s power to execute
laws, it cannot amend or violate existing treaties, and must be in
accord with and be made pursuant to existing laws and treaties.122
Accordingly, the terms and objectives of the presidential entry
into an international agreement dictates the form the agreement must
take. When an international agreement is made merely to implement
an existing law or treaty, then it can properly take the form of an
executive agreement.123
In contrast, when an international agreement involves the
introduction of a new subject matter or the amendment of existing
agreements or laws and has not passed the required executive and
legislative processes, then it should properly be in the form of a
treaty.124
To reiterate, the consequence of the violation of this norm
impacts on the enforceability of the international agreement in the
domestic sphere; should an executive agreement amend or
contravene statutory enactments and treaties, then it is void and
cannot be enforced in the Philippines for lack of the proper authority
on the part of the issuer.
_______________
120 Gonzales v. Hechanova, 118 Phil. 1065, 1079; 9 SCRA 230, 242 (1963).
121 Adolfo v. CFI of Zambales, 145 Phil. 264, 266-268; 34 SCRA 166, 170
(1970).
122 Bayan Muna v. Romulo, supra note 109 at pp. 1079-1080; p. 279.
123 Id.
124 Id.

570


In judicial terms, the distinctions and their consequences mean
that an executive agreement that creates new obligations or
amends existing ones, has been issued with grave abuse of
discretion amounting to a lack of or in excess of jurisdiction, and
can he judicially nullified under the courts’ power of judicial
review.

IV.C(3) Joint Reading of Article VII,
Section 21 and Article XVIII, Section 25

The dynamics that Article VII, Section 21 embody, should be
read into Article XVIII, Section 25 of the 1987 Constitution, which
specifically covers and applies to the entry of foreign military bases,
troops, or facilities into the country.
It is on the basis of this joint reading that the ponencia’s
conclusion — that Article XVIII, Section 25 applies only to the
initial entry of foreign military bases, troops, and facilities in the
country — is essentially incorrect.
Article XVIII, Section 25 does not provide for any such
limitation in its applicability. Neither is there anything in the
language of the provision that remotely implies this consequence.
What it simply states is that foreign military bases, troops, and
facilities may only be present in Philippine soil in accordance with a
treaty concurred in by the Senate.
When the terms of Article XVIII, Section 25 treaty does not
provide for situations or arrangements subsequent to the initial entry
of foreign military bases, troops, or facilities in the country and the
subsequent arrangements are still attributed to the same treaty made
pursuant to Section 25, the combined reading of Article VII, Section
21 and Article XVIII, Section 25 must now come into play.
This combined reading simply means that after the initial entry of
foreign military bases, troops, or facilities in the Philippines under a
duly ratified treaty, subsequent arrangements relating to foreign
military bases, troops or facilities that are claimed to be based on the
same treaty, should be examined

571
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based on the treaty-executive agreement distinctions recognized
by jurisprudence under Article VII, Section 21 of the Constitution.
In other words, any subsequent international agreement referring
to military bases, troops or facilities should be examined based on
whether it creates a new obligation or implements an existing one.
The determination of this question rests with the Executive but the
treaty-executive agreement distinctions should limit the Executive’s
discretion when the new international agreement relates to a new
obligation (or a change in an existing obligation) as the presence of
foreign military bases, troops, or facilities in the Philippines should
then be effected through another treaty.
To put it more bluntly, Article XVIII, Section 25 effectively
removes the Executive’s discretion in deciding the form of an
international agreement because of this provision’s explicit directive
to use a treaty as the medium for new obligations created.
In Bayan v. Zamora,125 our conclusion supported this position.
We explained that Article XVIII, Section 25 makes no distinction as
to whether the presence of foreign military bases, troops, or facilities
may be transient or permanent.126 By concluding that the
permanence of foreign military bases, troops, or facilities is
immaterial to the application of Article XVIII, Section 25, we
effectively acknowledged that subsequent agreements that amend or
introduce new obligations to existing treaties that previously allowed
the entry of foreign military bases, troops or facilities, should be the
subject of another treaty as they may enter the country on varying
grounds, lengths or periods of time — all of which can change the
nature of the obligations under existing treaties.
_______________
125 BAYAN (Bagong Alyansang Makabayan) v. Zamora, supra note 69.

126 Id., at p. 653; p. 484.

572


IV.C(4) The Dissent’s Analytical Approach

Given these parameters, I propose that we examine the
constitutionality of the Executive’s act of entering into the
obligations found in the EDCA in the form of an executive
agreement with these two questions:
(1) Does the EDCA involve the introduction into the
Philippines of foreign military bases, troops, or facilities that call
for its examination under Article XVIII, Section 25?
(2) Does the EDCA impose new obligations, or amend or go
beyond existing ones, regarding the presence of foreign military
bases, troops, or facilities in the Philippines?
If the EDCA introduces foreign military bases, troops, or
facilities in the Philippines within the contemplation of Article
XVIII, Section 25 of the 1987 Constitution, and if these obligations
are different from those found in our existing treaty obligations with
the U.S., then the EDCA cannot be enforced in the Philippines
without the Senate’s concurrence. The ponencia is then incorrect
and the Dissent must prevail.
Conversely, if the EDCA merely implements present treaty
obligations — particularly those under the 1951 MDT and the 1998
VFA — then the President was well within his powers in the
execution of our present treaty obligations. The ponencia is correct
and the Dissent therefore fails.

V. The Application of Article XVIII,
Section 25 to the EDCA

V.A. The Article XVIII, Section 25 Dispute

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When the subject of an international agreement falls under
Article XVIII, Section 25 of the Constitution, the President — by
constitutional command — must enter into a treaty subject to the
concurrence of the Senate and, when Congress so desires, of the
people through a national referendum.
This rule opens the door for Court intervention pursuant to its
duty to uphold the Constitution and its further duty (under its power
of judicial review) to pass upon any grave abuse of discretion
committed by any official or agency of government. It is under this
constitutionally-mandated terms that this Court invokes its power to
review the constitutionality of the President’s actions in handling the
EDCA.
Within this framework, the issue these cases present is clear. The
bottom line question is whether the President gravely abused his
discretion in executing the EDCA as an executive agreement; the
alleged existence of grave abuse of discretion constitutes the actual
case or controversy that allows the exercise of judicial power.
Whether grave abuse exists, in turn, depends on the determination
of whether the terms of the EDCA imposed new or amended
existing obligations involving foreign military bases, troops, and
facilities in the Philippines.
If the EDCA does, then it should have been in the form of a
treaty submitted to the Senate for its concurrence. In resolving this
question, I am guided first, by the text of the, Constitution itself and
the meaning of its operative words in both their original and
contemporaneous senses; second, by the spirit that motivated the
framing of Article XVIII, Section 25; and third, by jurisprudence
interpreting this provision.
The ponencia lays the premise that the President 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

574


(b) it merely aims to implement an existing law or treaty.127

The ponencia follows this premise with the position that Article
XVIII, Section 25 refers only to the initial entry of bases, troops, or
facilities, and not to the activities done after entry.128
In construing Article XVIII, Section 25, the ponencia invokes the
rule of verba legis, a cardinal rule of construction stating that when
the law is clear and free from any doubt or ambiguity, then there is
no room for construction or interpretation, only application.129 The
law must be given its literal meaning and applied without attempted
interpretation.130 The ponencia asserts that the plain meaning of
“allowed in” refers solely to the initial entry.131 Thus, after entry,
any subsequent acts involving foreign military troops, bases, or
facilities no longer fall under the coverage of Article XVIII, Section
25.132
I believe that the ponencia’s approach and interpretation are
incorrect because they are overly simplistic. The proper
understanding of Article XVIII, Section 25 must take into account
the many considerations that bear upon its plain terms, among them,
the treaty-executive agreement distinctions under Article VII,
Section 21 that I discussed above; the history of Article XVIII,
Section 25; the motivations that drove the framers to adopt the
provision; and the current and contemporaneous developments and
usages that give full and effective meaning to the provision.
Separately from textual interpretation considerations and as part
of the history of Article XVIII, Section 25, the basic concept of
sovereignty that underlies it should not be forgot-
_______________

128 Id., at p. 347.
129 Bolos v. Bolos, G.R. No. 186400, 20 October 2010, 634 SCRA 429, 437.
130 Ponencia, pp. 356-357.
131 Id., at pp. 354-355.
132 Id.

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ten.133 Sovereignty means the full right and power of the nation
to govern itself, its people, and its territory without any interference
from outside sources or entities.134 Within its territory, a nation
reigns supreme. If it will allow interference at all, such interference
should be under the terms the nation allows and has accepted;135
beyond those terms, the primacy of sovereignty is the rule.136
_______________
133 IV Record, Constitutional Commission, pp. 84, 659 and 661 (September 16,
1986), which reads:
MR. AZCUNA: After the agreement expires in 1991, the question, therefore, is:
Should we extend a new treaty for these bases to stay put in 1991 in our territory? The
position of the committee is that it should not, because the presence of such bases is a
derogation of Philippine sovereignty.
It is said that we should leave these matters to be decided by the executive, since
the President conducts foreign relations and this is a question of foreign policy. I
disagree, Madam President. This is not simply a question of foreign policy; this is a
question of national sovereignty. x x x
FR. BERNAS: My question is: Is it the position of the committee that the presence
of foreign military bases in the country under any circumstances is a derogation of
national sovereignty?
MR. AZCUNA: It is difficult to imagine a situation based on existing facts where
it would not. x x x
134 Id.
135 See Tañada v. Angara, 338 Phil. 546, 593; 272 SCRA 18, 68 (1997), citing
Reagan v. Commissioner of Internal Revenue, 141 Phil. 621, 625; 30 SCRA 968, 973
(1969), where the Court discussed the concept of auto-limitation, viz.: “It is to be
admitted that any State may by its consent, express or implied, submit to a restriction
of its sovereignty rights. That is the concept of sovereignty as auto-limitation which,
in the succinct language of Jellinek, ‘is the property of a state-force due to which it
has the exclusive capacity of legal-self determination and self-restriction.’ A State
then, if it chooses to, may refrain from the exercise of what otherwise is illimitable
competence.”
136 Id.

576


Thus, if interference were to be allowed at all, or if exceptions to
full sovereignty within a territory would be allowed, or if there
would be any ambiguity in the extent of an exception granted, the
interference, exception or ambiguity must be resolved in favor of the
fullest exercise of sovereignty under the obtaining circumstances.
Conversely, if any ambiguity exists at all in the terms of the
exception or in the terms of the resulting treaty, then such terms
should be interpreted restrictively in favor of the widest application
of the restrictions embodied in the Constitution and the laws.
The ponencia cannot be incorrect in stating the rule that when
terms are clear and categorical, no need for any forced constitutional
construction exists;137 we need not divine any further meaning but
must only apply terms in the sense that they are ordinarily
understood.
A flaw, however, exists in the ponencia’s application of verba
legis as Article XVIII, Section 25 is neither plain nor that simple.
As pointed out above, it must be read together with Article VII,
Section 21 for the general rules on the treaty-making process. It also
expressly refers to a historical incident — the then coming
expiration of the 1947 MBA. From these takeoff points, the Article
XVIII, Section 25 proceeds to a list of the matters it specifically
addresses — foreign military bases, troops, or facilities.
All these bring up the question that has so far been left
undiscussed — what are the circumstances that led to the
expiration of the 1947 MBA and what are the foreign military
bases, troops, and facilities that Article XVIII, Section 25 refers
to?

V.B. The History and Intent of
Article XVIII, Section 25
_______________
137 Ponencia, pp. 356-357.

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The history of Article XVIII, Section 25 of the Constitution is
practically summed up in the introductory phrase of the provision —
“After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning
Military Bases x x x.”
Purely and simply, the framers of the Constitution in 1986 then
looked forward to the expiration of the U.S. bases coming in 1991
and wanted the terms of any future foreign military presence
governed by the Constitution itself. Behind this intent is the deeper
policy expressed under Article II, Section 7 of the Constitution —

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

During the constitutional deliberation on Article XVIII, Section
25, two views were espoused on the presence of military bases in the
Philippines. One view was that espoused by the anti-bases group;
the other group supported the view that this should be left to the
policy makers.
Commissioner Adolfo Azcuna expressed the sentiment of the
first group when he stated in his privilege speech on 16 September
1986 that:
After the agreement expires in 1991, the question therefore, is:

Should we extend a new treaty for these bases to stay put in
1991 in our territory? The position of the committee is that it
should not, because the presence of such bases is a derogation
of Philippine sovereignty.
It is said that we should leave these matters to be decided by

the executive, since the President conducts foreign relations
and this is a question of foreign policy. I disagree, Madam
President. This is not simple a question of foreign policy; this
is a question of national sovereignty.

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VOL. 779, JANUARY 12, 2016 577


And the Constitution is anything at all, it is a definition of
the parameters of the sovereignty of the people.138

On the other hand, the second group posited that the decision to
allow foreign bases into the country should be left to the policy
makers. Commissioner Jose Bengzon expressed the position of this
group that:
x x x this is neither the time nor the forum to insist on our

views for we know not what lies in the future. It would be
foolhardy to second-guess the events that will shape the
world, our region and our country by 1991. It would be sheer
irresponsibility and a disservice to the highest calibre to our
own country if we were to tie down the hands of our future
governments and future generations.139

Despite his view that the presence of foreign military bases in the
Philippines would lead to a derogation of national security,
Commissioner Azcuna conceded that this would not be the case if
the agreement would allow the foreign military bases, troops, and
facilities to be embodied in a treaty.140
_______________
138 III Record, Constitutional Commission 86 (16 September 1986), p. 659.

139 IV Record, Constitutional Commission 82 (13 September 1986), pp. 617-618.
140 IV Record, Constitutional Commission 84 (16 September 1986), pp. 661-662,
which reads:
FR. BERNAS. My question is: is it the position of the committee that the presence
of foreign military bases in the country under any circumstances is a derogation of
national sovereignty?
MR. AZCUNA: It is difficult to imagine a situation based on existing facts where
it would not. However, in the abstract, it is possible that it would not be that much of
a derogation. I have in mind, Madam President, the argument that has been presented.
Is that the reason why there are U.S. bases in England, in Spain and in Turkey? And it
is not being claimed that their sovereignty is being derogated. Our situation is
different from theirs because we did not lease or rent

579
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After a series of debates, Commissioner Ricardo Romulo
proposed an alternative formulation that is now the current Article
XVIII, Section 25.141 He explained that this is an explicit ban on all
foreign military bases other than those of the U.S.142 Based on the
discussions, the spirit of the basing provi-
_______________
these bases to the U.S. The US retained them from us as a colonial power.
x x x x
FR. BERNAS: Does the first sentence tolerate a situation radically different from
what obtains now? In other words, if we understand sovereignty as auto limitation, as
a people’s power to give up certain goods in order to obtain something which may be
more valuable, would it be possible under this first sentence for the nation to negotiate
some kind of a treaty agreement that would not derogate against sovereignty?
MR. AZCUNA: Yes. For example, Madam President, if it is negotiated on a basis
of true sovereign equality, such as a mutual ASEAN defense agreement wherein an
ASEAN force is created and this ASEAN force is a foreign military force and may
have a basis in the member ASEAN countries, this kind of a situation, I think would
not derogate from sovereignty.
141 IV Record, Constitutional Commission 86 (18 September 1986), p. 787,
which reads:
MR. ROMULO: Madam President, may I propose my amendment to the Bernas
amendment: “AFTER THE EXPIRATION OF THE RP-US AGREEMENT IN 1991,
FOREIGN MILITARY BASES, TROOPS OR FACILITIES SHALL NOT BE
ALLOWED IN THE PHILIPPINE TERRITORY EXCEPT UNDER THE TERMS
OF A TREATY DULY CONCURRED IN BY THE SENATE, AND WHEN
CONGRESS SO REQUIRES RATIFIED BY A MAJORITY OF THE VOTES CAST
BY THE PEOPLE IN A REFERENDUM HELD FOR THAT PURPOSE AND
RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.”
142 IV Record, Constitutional Commission 86 (18 September 1986), p. 780,
which reads:
FR. BERNAS: On the other hand, Madam President, if we place it in the
Transitory Provisions and mention only the American State, the conclusion might be
drawn that this applies only to foreign

580


sions of the Constitution is primarily a balance of the
preservation of the national sovereignty and openness to the
establishment of foreign bases, troops, or facilities in the country.
Article XVIII, Section 25 imposed three requirements that must
be complied with for an agreement to be considered valid insofar as
the Philippines is concerned. These three requirements are: (1) the
agreement must be embodied in a treaty; (2) the treaty must be duly
concurred in by 2/3 votes of all the members of the Senate;143 and
(3) the agreement must be recognized as a treaty by the other State.
On the second requirement, the two-thirds concurrence of all the
members of the Senate, the people’s representative,144
_______________
military bases of the United States. The conclusion might be drawn that the
principle does not apply to other states.
MR. ROMULO: That is certainly not our meaning. We do not wish any other
foreign military base here and I think the phrase which says: “NO FOREIGN
MILITARY BASES, TROOPS OR FACILITIES...” makes that very clear even if it is
in the Transitory Provisions.
143 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 69 at p. 652;
pp. 483-487, stating that:
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.
x x x x
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.
144 Constitution, Article VII, Section 21. See also Bernas, Joaquin, The 1987
Constitution of the Republic of the Philippines: A Commentary, pp. 487-488 (1995).

580


sions of the Constitution is primarily a balance of the
preservation of the national sovereignty and openness to the
establishment of foreign bases, troops, or facilities in the country.
Article XVIII, Section 25 imposed three requirements that must
be complied with for an agreement to be considered valid insofar as
the Philippines is concerned. These three requirements are: (1) the
agreement must be embodied in a treaty; (2) the treaty must be duly
concurred in by 2/3 votes of all the members of the Senate;143 and
(3) the agreement must be recognized as a treaty by the other State.
On the second requirement, the two-thirds concurrence of all the
members of the Senate, the people’s representative,144
_______________
military bases of the United States. The conclusion might be drawn that the
principle does not apply to other states.
MR. ROMULO: That is certainly not our meaning. We do not wish any other
foreign military base here and I think the phrase which says: “NO FOREIGN
MILITARY BASES, TROOPS OR FACILITIES...” makes that very clear even if it is
in the Transitory Provisions.
pp. 483-487, stating that:
x x x x
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.
144 Constitution, Article VII, Section 21. See also Bernas, Joaquin, The 1987
Constitution of the Republic of the Philippines: A Commentary, pp. 487-488 (1995).

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may be viewed as the people’s “voluntary submission” of their
sovereignty so they can reap the greater benefits of the agreement
that the President, as policymaker, entered into.
When the Congress so requires, the agreement should be ratified
by a majority of the votes cast by the people in a national
referendum held for that purpose.145 This additional requirement
evinces the framers’ intent to emphasize the people’s direct
participation in treaty-making.
In Bayan v. Zamora,146 the Court relaxed the third requirement
when it ruled that it is sufficient that “the other contracting party
accepts or acknowledges the agreement as a treaty.” In that case,
since the U.S. had already declared its full commitment to the 1998
VFA,147 we declared that it was unnecessary for the U.S. to further
submit the agreement to the U.S. Senate.148
This history highlights the importance of the issue now before us,
and stresses as well how seriously the Constitution regards the
Senate concurrence requirement. Thus, the issue can neither be
simply glossed over nor disregarded on the basis of stretched legal
technicalities. In case of doubt, as above discussed, such doubt
should be resolved strictly in favor of what the Constitution requires
in its widest sense.

V.C. Historical Roots of the U.S. Bases in the Philippines

As a U.S. colony after the Treaty of Paris of 1898, the whole
Philippines could be equated to one big American base: the U.S. had
sovereignty and had a free hand on how to deal with defense matters
and its military forces in the Philippines.
_______________
145 Constitution, Article XVIII, Section 25.

147 Id., at p. 659; p. 488.
148 Id., at pp. 656-659; p. 488.

582


The Tydings-McDuffie Act of 1934 provided for the Philippines’
self-government and specified a procedural framework for the
drafting of a constitution for the government of the Commonwealth
of the Philippines149 within two years from the Act’s enactment.150
The Act, more importantly, mandated the recognition by the U.S. of
the independence of the Philippine Islands as a separate and self-
governing nation after a ten-year transition period.151
Prior to independence, the Act allowed the U.S to maintain
military forces in the Philippines and to call all military forces of the
Philippine government into U.S. military service.152 The Act
empowered the U.S. President, within two years following
independence, to negotiate for the establishment of U.S. naval
reservations and fueling stations in the Philippine Islands.153
The negotiations for American bases that took place after
independence resulted in the 1947 MBA.

V.C(1) The 1947 Military Bases Agreement

The 1947 MBA between the Philippines and the U.S. was signed
on March 16, 1947. The agreement officially allowed
_______________
149 The Tydings-McDuffie Act, also known as the Philippine Independence Act,
was entitled “An Act to Provide for the Complete Independence of the Philippine
Islands, to provide for the Adoption of a Constitution and a Form of Government for
the Philippine Islands, and for other purposes.” It was signed into law by President
Franklin D. Roosevelt on March 24, 1934 and was approved by the Philippine Senate
on May 1, 1934. See Encyclopedia Britannica, Tydings-McDuffie Act, available at
http:/www.britanica.com/topic/Tydings-McDuffie-Act and http://www.philippine-
history.org/tydings-mcduffie-law.htm.
150 Tydings-McDuffie Act, Section 3.
151 Id., Section 10.
152 Id., Section 2(12). See also Ordinance appended to 1935 Constitution,
Section 1(12).
153 Id., Section 10(b).

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the U.S. to establish, maintain, and operate air and naval bases in
the country.154 It provided for about 23 listed bases and facilities for
use by Americans for a period of 99 years.155 The most important of
these bases were the 180,000-acre Clark Air Base in Pampanga, then
the biggest American airbase outside of the continental U.S.A., and
the Subic Naval Base in Zambales.
The bases covered by the 1947 MBA were fixed bases where
American structures and facilities had been built and arms,
weapons, and equipment were deployed and stored, and where
troops and civilian personnel were stationed, together with their
families.
Other provisions of the 29-article 1947 MBA were the following:
The bases were properties over which the U.S. originally

exercised sovereignty but this was subsequently transferred to the
Philippines pursuant to the Romulo-Murphy Agreement of 1979.
After the transfer, the U.S. and its armed forces and personnel
were granted rent-free access up to the expiration of the
Agreement.156
_______________
154 The 1947 MBA Whereas Clause, par. 7, states:

THEREFORE, the Governments of the Republic of the Philippines and of the
United States of America agree upon the following terms for the delimitation,
establishment, maintenance, and operation of military bases in the Philippines.
155 1947 MBA, Article XXIX; see Annexes A and B of the 1947 MBA.
156 The 1947 MBA Whereas clause states:
Whereas, the Governments of the Republic of the Philippines and of the United
States of America are desirous of cooperating in the common defense of their two
countries through arrangements consonant with the procedures and objectives of the
United Nations, and particularly through a grant to the United States of America by
the Republic of the Philippines in the exercise of its title and sovereignty, of the use,
free of rent, in furtherance of the mutual interest of both countries, of certain lands of
the public domain. x x x (Emphases supplied)

584

The bases were for the mutual protection and cooperation of the
two countries and for this purpose were for their use as U.S. and
Philippine military installations.157
The U.S. had the right, power and authority necessary for the
establishment, operation, and defense of the bases and their
control,158 specifically:
To operate, maintain, utilize, occupy, garrison, and control the
bases;
To improve and deepen the harbors, channels and entrances and
anchorage, and to construct and maintain necessary roads and
bridges accessing the bases;
To control the operation and safety of the bases and all the
structures and facilities in them;
To acquire right-of-way by agreement and to construct
telecommunication and other facilities;
To construct, install, maintain and employ on any base any type
of facilities, weapons, substance, device, or vessel as may be
necessary;
To bring into the Philippines members of the U.S. military
forces and U.S. nationals employed under contract by the U.S.
with the families, as well as technical personnel of other
nationalities not otherwise excluded from the Philippines.
The Philippine government was prohibited from granting any
bases to other nations without U.S. consent.159

The U.S. was permitted to recruit Filipino citizens, on voluntary
basis, for service in the American military.160

_______________
157 1947 MBA, Whereas Clause, Articles II and III.

158 Id., Articles II, III, IV, VI, and VII.
159 Id., Article XXV(1).
160 Id., Article XXVII.

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The U.S. base commanders had the right to tax, distribute utilities,
hand out licenses, search without warrants, and deport
undesirables.161
Complementing the signing of the 1947 MBA was the signing of

the Military Assistance Agreement of 1947 and the 1951 MDT.
Over the years, various provisions of the 1947 MBA were
amended, gradually delimiting U.S. control over the bases.162

_______________
161 Id., Articles XI, XII, XIII, XIV, and XV.
162 The Ramos-Rusk Agreement of 1966 reduced the term of the 1947 Bases
Treaty to a total of 44 years or until 1991.
The Bohlen-Serrano Memorandum of Agreement provided for the return to the
Philippines of 17 U.S. military bases.
The Romulo-Murphy exchange of Notes of 1979 recognized Philippine sovereignty
over the Clark and Subic Bases, reduced the area that could be used by the U.S.
military, and provided for the mandatory review of the 1947 Bases Treaty every five
years.
The Romualdez-Armacost Agreement of 1983 revised the 1947 Bases Treaty,
particularly pertaining to the operational use of military/bases by the U.S. government
within the context of Philippine sovereignty, including the need for prior consultation
with the Philippine government on the former’s use of the bases for military combat
operations or the establishment of long-range missiles.
The 1947 Military Assistance Agreement (1947 MAA) entered into by the President
with the U.S. pursuant to the authority granted under Republic Act No. 9. The
Agreement established the conditions under which the U.S. military assistance would
be granted to the Philippines, particularly the provision of military arms,
ammunitions, supplies, equipment, vessels, services, and training for the latter’s
defense forces.
The 1953 Exchange of Notes Constituting an Agreement Extending the Agreement
Between the Government of the Republic of the Philippines and the Government of
the United States of America on Military Assistance to the Philippines (1953
Agreement) clarified that the 1947 Agreement would remain in force until terminated
by any of the parties.

586


On September 16, 1966, the Ramos-Rusk Agreement reduced its
term to 25 years starting from that year.
A review of the 1947 MBA in 1979 led to the formal transfer of
control of Clark and Subic bases to the Philippines.163 Thus, these
bases became Philippine military installations containing U.S.
military facilities. The review also provided that each base would be
under a Filipino base commander; the Philippine flag was to fly
singly in the bases; the Philippine government was to provide
security along the bases’ perimeters; and the review of the
agreements would take place every five years starting in 1979.164
On September 16, 1991, the Philippine Senate rejected the
proposed RP-US Treaty of Friendship, Cooperation and Security
that would have extended the life of the bases for 10 more years.165
The 1947 MBA was terminated on December 21, 1992 when the 25-
year tenure lapsed. This prompted the U.S. to vacate its bases
effective at the end of December 1992.166
_______________
163 See Romulo-Murphy Exchange of Notes of 1979.

164 See Official Gazette, Report of President Marcos to the Batasang Pambansa,
January 15, 1979.
p. 464, which states:
In view of the impending expiration of the RP-U.S. Military Bases Agreement in
1991, the Philippines and the U.S. negotiated for a possible extension of the military
bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed
RP-U.S. Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of U.S. military bases in the Philippines.
166 Philippine Communications Satellite Corporation v. Globe Telecom, Inc., 473
Phil. 116, 122; 429 SCRA 153, 156 (2004), which states:
On 31 December 1991, the Philippine Government sent a Note Verbale to
the U.S. Government through the U.S. Embassy, notifying it of the
Philippines’ termination of the RP-US Military Bases Agreement. The Note
Verbale stated that since the RP-US Military Bases Agreement, as amended,
shall ter-

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The departure of the U.S. warship Bellau Wood marked the
closure of American military bases in the country.167
With the expiration of the 1947 MBA, the detailed arrangements
for the presence of U.S. military forces and facilities in the
Philippines, particularly those listed above, similarly ended, leaving
only the general arrangements under the 1951 Mutual MDT.

V.C(2) The 1951 Mutual Defense Treaty

The 1951 MDT was signed on August 30, 1951, while the U.S.
was establishing a number of bilateral defense alliances with key
Asian States as it positioned itself to contain communist expansion
in Asia in the period following World War II and the Korean War.
Despite periods of drift, its relationship with its Asian allies
provided the U.S. support and assistance throughout the Cold War
and during the Vietnam War.168
The 1951 MDT provided the general terms of the defense
alliance between the U.S. and the Philippines; the more detailed
terms were reflected in the earlier 1947 MBA that expired and was
not renewed in 1991.
_______________
minate on 31 December 1992, the withdrawal of all U.S. military forces

from Subic Naval Base should be completed by said date.
167 Anderson, Gerald, Subic Bay From Magellan to Pinatubo: The History of the
US Naval Station, Subic Bay, p. 181 (2006), available at
https://books.google.com.ph/books?
id=OfPs0NH5EuAC&printsec=frontcover&dq=subic+bay+from+magellan+to+pinatubo&hl=en&sa=X&ved=0ahUKEwjvitrLrNjJAhUBJ5QKHcBICAUQ6AEIJDAA#v=onepage&q=subic%20b
168 Vaughn, Bruce, “U.S. Strategic and Defense Relationships in the Asia-Pacific
Region” U.S. Congressional Research Service Report for Congress (January 22,
2007). Available at https://www.fas.org/sgp/crs/row/RL33821.pdf.

588


The 1947 MBA and the 1951 MDT were the counterparts of U.S.
agreements with the North Atlantic Treaty Organization (NATO)
countries. One of those agreements was the NATO Status of Forces
Agreement (NATO-SOFA), a multilateral agreement that applies to
all the NATO member countries.169
After the World War II, the U.S. maintained various European
bases.170 Despite the presence of these bases, the U.S. entered into
the NATO-SOFA on June 19, 1951, to define the terms for the
deployment and status of its military forces in these countries.171
Most of the other NATO states, however,
_______________
169 Mason, R. Chuck, “Status of Forces Agreement (SOFA): What is it, how is it
utilized?” U.S. Congressional Research Service Report for Congress (March 15,
2012). Available at https://wvvw.fas.org/sgp/crs/natsec/RL34531.pdf.
170 For an illustrated depiction of the increase of U.S. military bases around the
world before (1939) and after (1945) World War III, see Vine, David, supra note 77 at
pp. 32-36.
171 See Mason, supra, stating that the U.S. and Germany entered into a
supplemental agreement to the NATO-SOFA (as provided in 14 U.S.T. 531; T.I.A.S.
5351. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963) and additional
exchange of notes related to specific issues (14 U.S.T. 689; T.I.A.S. 5352; 490
U.N.T.S. 30. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963).
Also, the Manila Pact entered into on September 8, 1954 by the U.S., the
Philippines, Australia, France, New Zealand, Pakistan, and Thailand, whereby the
parties agreed, among others, to: settle any international disputes in which they may
be involved by peaceful means in such a manner that international peace and security
and justice are not endangered, and to refrain in their international relations from the
threat or use of force in any manner inconsistent with the purposes of the United
Nations; and separately and jointly, by means of continuous and effective self-help
and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack and to prevent and counter subversive activities directed from
without against their territorial integrity and political stability. See Southeast Asia
Collective Defense Treaty (September

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required ratification and implementing legislation, with
additional agreements to implement the NATO-SOFA.172
The 1951 MDT provides for an alliance — that both nations
would support one another if either the Philippines or the U.S.
would be attacked by an external party.173 It states that each party
shall either, separately or jointly, through mutual aid, acquire,
develop and maintain their capacity to resist armed attack.174 It
provides for a mode of consultations to determine the 1951 MDT’s
appropriate implementation measures and when either of the parties
determines that their territorial integrity, political independence, or
national security is threatened by armed attack in the Pacific.175 An
attack on either party will be acted upon in accordance with their
constitutional processes and any armed attack on either party will be
brought to the attention of the United Nations for immediate
action.176
The accord defines the meaning of an armed attack as including
armed attacks by a hostile power on a metropolitan area of either
party, on the island territories under their jurisdiction in the Pacific,
or on their armed forces, public vessels, or aircrafts in the Pacific.177
The U.S. government guar-
_______________
8, 1954), 209 U.N.T.S. 28-30, available at

https://treaties.un.org/doc/Publication/UNTS/Volume%20209/v209.pdf.
172 For example, the U.S. entered into supplementary agreement with the Federal
Republic of Germany (which acceded to the NATO-SOFA in 1963) with respect to
allied forces stationed permanently in Germany, see Fleck, Dieter, The Handbook of
the Law on Visiting Forces, p. 353 (2001).
173 The 1951 MDT states the Parties’ objective “[d]esiring 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.”
174 1951 MDT, Article II.
176 Id., Article IV.
177 Id., Article V.

590


anteed to defend the security of the Philippines against external
aggression but not necessarily against internal subversion. The treaty
expressly stipulates that its terms are indefinite and would last until
one or both parties terminate the agreement by a one-year advance
notice.178 The treaty subsequently became the basis for an annual
joint exercise, known as Balikatan, between the Philippines and the
U.S.179
On the whole, the 1951 MDT embodied an alliance and defense
agreement, focused as it is on joint action and defenses against
armed external attacks. It made no provision for bases, troops, or
facilities which the 1947 MBA contained and which lapsed when the
MBA’s term expired.

V.C(3) The 1998 Visiting Forces Agreement

The 1998 VFA came after the expiration of the 1947 MBA in
1991 and opened a limited window for the presence of American
troops in the Philippines. It was entered into during the era when the
U.S. was envisioning “access” as a new approach in maintaining its
presence in Southeast Asia. Instead of permanent bases, the
approach sought bilateral arrangements — like those with Singapore
— for training, exercises, and interoperability to allow for
uninterrupted forward deployment in the Asian region; their
continued presence in the region assures faster response to
developments in flash points in the eastern hemisphere.180
_______________

179 Lim v. Executive Secretary, 430 Phil. 555, 562; 380 SCRA 739, 742-743
(2002), which states: These so-called “Balikatan” exercises are the largest combined
training operations involving Filipino and American troops. In theory, they are a
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a
bilateral defense agreement entered into by the Philippines and the United States in
1951.
180 See Moderno, H. Marcos, “A Decade of US Troops in Mindanao: Revisiting
the Visiting Forces Agreement (2),” MindaNews,

591
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In line with the American approach, the 1998 VFA allows the
rotational presence of U.S. military forces and their operations
anywhere in the Philippines for a temporary but undefined length of
time to train and inter-operate with the Philippine armed forces and
to use their facilities. The Philippines retains jurisdiction over
criminal cases, including capital offenses, involving U.S. troops.181
In BAYAN v. Zamora,182 the Court held that although the
agreement did not entail the permanent basing of a foreign military
force, it required a treaty because Article XVIII, Section 25 of the
Constitution covers not only the presence of bases but also the
presence of “troops.”183 As a treaty, the 1998 VFA required the
concurrence of the Senate pursuant to Article VII, Section 21 of the
Constitution.

_______________
April 24, 2012, available at http://www.mindanews.com/special-

reports/2012/04/24/a-decade-of-us-troops-in-mindanao-revisiting-the-visiting-forces-
agreement-2/.
181 1998 VFA, Article V.
183 Id., at p. 652; p. 483, which states:
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.

592


The Court also held that the Philippines is bound to accept an
official declaration by the U.S. to satisfy the requirement that the
other contracting party must recognize the agreement as a treaty.184
It noted that the Vienna Convention on the Law of Treaties leaves
each state free to choose its form of giving consent to a treaty.185

V.D. The EDCA

As heretofore outlined, the U.S. adopted the “Pivot to Asia”
strategy beginning 2009 under the administration of President
Barack Obama. In the article Explaining the U.S. Pivot to Asia, Kurt
Campbell and Brian Andrews enumerated six key efforts under the
U.S.’s “Pivot to Asia” policy, namely: alliances; improving
relationships with emerging powers; economic statecraft; engaging
with multi-lateral institutions; support for universal values; and
increasing military presence.186
On military presence, the operative word is “presence”: the
forward deployment of U.S. military forces in Asia.187 The EDCA
perfectly fits the American strategy as it allows the
prepositioning of equipment and supplies in agreed locations to
enhance the U.S.’s “development of a geo-
_______________
184 Id., at p. 657; p. 488, which 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. To
require the other contracting state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence pursuant to its Constitution, is to
accord strict meaning to the phrase.
185 Bernas, Joaquin, supra note 144 at pp. 1400-1401.
186 See Campbell, Kurt & Andrews, Brian, Explaining the US ‘Pivot’ to Asia, pp.
3-8, August 2013, Chatham House, available at
https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Americas/0813pp_pivottoasia.pdf.
187 Id., at p. 8.

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graphically dispersed, politically sustainable force posture in
the region.”188
The EDCA was signed on April 28, 2014, in Manila, by
Philippine Defense Secretary Voltaire Gazmin, and U.S.
Ambassador to the Philippines Philip Goldberg, in time for the
official state visit by U.S. President Barack Obama. The 10-year
accord is the second military agreement between the U.S. and the
Philippines (the first being the 1998 VFA) since American troops
withdrew from its Philippines naval base in 1992.
The agreement allows the U.S. to station troops and operations
on Philippine territory without establishing a permanent base189 and
with the stipulation that the U.S. is not allowed to store or position
any nuclear weapons on Philippine territory.190
The EDCA was entered into for the following purposes:
1. This Agreement deepens defense cooperation between the

Parties and maintains and develops their individual and
collective capacities, in furtherance of Article II of the MDT,
which states that “the Parties separately and jointly by self-
help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack,” and within the
context of the VFA. This includes:
(a) Supporting the Parties’ shared goal of improving

interoperability of the Parties’ forces and for the Armed
Forces of the Philippines (“AFP”), addressing short-term
capabilities gaps; promoting long-term modernization, and
helping maintain and develop additional maritime security,
maritime domain awareness, and humanitarian assistance and
disaster relief capabilities; and
_______________
188 Id.
189 EDCA, Preamble, par. 5.
190 Id., Article IV, par. 6.

594


(b) Authorizing access to Agreed Location in the territory of
the Philippines by United States forces on a rotational basis as
mutually determined by the Parties.
2. In furtherance of the MDT, the Parties mutually agree that
this Agreement provides the principal provisions and necessary
authorizations with respect to Agreed Locations.
3. The Parties agree that the United States may undertake the
following types of activities in the territory of the Philippines in
relation to its access to and use of Agreed Locations: security
cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other
activities as may be agreed upon by the Parties.191

To summarize, the EDCA has two main purposes:
First, it is intended as a framework for activities for defense
cooperation in accordance with the 1951 MDT and the 1998 VFA.
Second, it grants to the U.S. military the right to use certain
identified portions of the Philippine territory referred to in the
EDCA as Agreed Locations. This right is fleshed out in the EDCA
when the agreement identifies the privileges granted to the US in
bringing in troops and facilities, in constructing structures, and in
conducting activities.192
The EDCA is effective for 10 years, unless both the U.S. and the
Philippines formally agree to alter it.193 The U.S. is bound to hand
over any and all facilities in the “Agreed Locations” to the
Philippine government upon the termination of the Agreement.
In terms of contents, EDCA may be divided into two:
_______________
191 Id., Article I.

193 Id., Article XII(4).

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First, it reiterates the purposes of the 1951 MDT and the 1998
VFA in that it affirms the continued conduct of joint activities
between the U.S. and the Philippines in pursuit of defense
cooperation.
Second, it contains an entirely new agreement pertaining to
Agreed Locations, the right of the U.S. military to stay in these areas
and conduct activities which may not be imbued with mutuality of
interests since they do not involve defense cooperation.
The latter provides support for two interrelated arguments that I
will forward in this Opinion. First, the EDCA refers to the presence
of foreign military bases, troops, and facilities in this jurisdiction.
Second, the EDCA is not a mere implementation of, but goes
beyond, the 1951 MDT and the 1998 VFA. It is an agreement that
introduces new terms and obligations not found in the 1951 MDT
and the 1998 VFA, and thus requires the concurrence of the Senate.

V.D(1) Does the EDCA involve the entry
of military bases to the Philippines as en-
visioned under Article XVIII, Section 25?

V.D(1)(i) The Concept of a Foreign Military Base

A reading of the EDCA will reveal that it pertains to the presence
in this country of a foreign military base or the modern equivalent of
one. While Article XVIII, Section 25 mentions no definition of what
a foreign military base, troops, or facility is, these terms, at the time
the 1987 Constitution was drafted, carried a special meaning. In fact,
this meaning was the compelling force that convinced the framers to
include Article XVIII, Section 25 in the 1987 Constitution.
More specifically, when the framers of the 1987 Constitution
referred to foreign military bases, they had in mind the

596


then existing 1947 MBA.194 This is apparent from the text of the
provision itself which makes direct reference to the treaty, as well as
from the exchanges of the framers of the 1987 Constitution prior to
their vote on the proposed provision.195
In construing the meaning of statutes and of the Constitution, one
aim is to discover the meaning that the framers attached to the
particular word or phrase employed.196 The pertinent statute or
provision of the Constitution must then be “construed as it was
intended to be understood when it was passed.”197
Thus, a proper interpretation of the meaning of foreign military
bases must take into account how it was understood by the framers
in accordance with how the 1947 MBA established U.S. military
bases in the Philippines. It is in this technical and precise meaning
that the term military base was used. It is this kind of military bases
that Article XVIII, Section 25 intends to cover, subject to specific
qualifications.
Hence, the concept of military bases as illustrated in the 1947
MBA should be taken into account in ascertaining whether the
EDCA contemplates the establishment of foreign military bases.
This reality renders a comparison of the 1947 MBA and the EDCA
appropriate.
_______________
194 V Record, Constitutional Commission, p. 105. (October 11, 1986), which

reads:
Mr. Benntagen: Point of information. I have with me a book of Patricia M. Paez,
The Bases Factor, the authority on US relations. And reference to the agreement
reads this way: Agreement between the Republic of the Philippines and the United
States of America concerning military bases.
Mr. Azcuna: That is the official title. Why do we not use that? After the expiration
of the agreement x x x.
195 Id.
196 Alcantara, Samson, Statutes, p. 58 (1997 ed.); see also Agpalo, Ruben,
Statutory Construction, 6th ed., p. 282.
197 Ernesto v. Court of Appeals, 216 Phil. 319, 327-328; 131 SCRA 347, 356
(1984).

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To clarify this position, it is not that the framers of the 1987
Constitution had in mind the specific existing foreign military bases
under the 1947 MBA when they drafted Article XVIII Section 25.
Such a position unjustifiably assumes that the framers lacked
foresight and merely allowed themselves to be solely limited by the
existing facts.
Rather, my position is that it is the concept of a foreign military
base under the 1947 MBA, and not the specific military bases listed
in its Annexes, that should be determinative of what the Constitution
intends to cover. The foreign military base concept should
necessarily be adjusted, too, to take into account the developments
under the new U.S. “Pivot to Asia” strategy.

V.D(1)(ii) EDCA and the 1947 MBA Compared

A first material point to note is that the obligations under the
EDCA are similar to the obligations found in the 1947 MBA. To
support this view, I present below a side by side comparison of the
relevant provisions of the EDCA and the 1947 MBA.

598


599
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600


601
VOL. 779, JANUARY 12, 2016 601

While the 1947 MBA grants broader powers to the U.S., due
perhaps to the geopolitical context under which the agreement was
forged (the 1947 MBA had an international, in contrast with EDCA’s
Asian, focus), the EDCA and the 1947 MBA essentially pursue the
same purpose — the identification of portions of Philippine
territory over which the U.S. is granted certain rights for its
military activities.
These rights may be categorized into four:
(1) the right to construct structures and other facilities for the
proper functioning of the bases;
(2) the right to perform activities for the defense or security of
the bases or Agreed Locations;
(3) the right to preposition defense equipment, supplies and
materiel; and
(4) other related rights such as the use of public utilities and
public services.
Only those who refuse to see cannot discern these undeniable

parallelisms.

602


Further, even independently of the concept of military bases
under the 1947 MBA, the provisions of the EDCA itself provide a
compelling argument that it seeks to allow in this country what
Article XVIII, Section 25 intends to regulate.
There exists no rigid definition of a military base. However, it is
a term used in the field of military operations and thus has a
generally accepted connotation. The U.S. Department of Defense
(DoD) Dictionary of Military and Associated Terms defines a base
as “an area or locality containing installations which provide
logistic or other support”; home carrier.198
Under our laws, we find the definition of a military base in
Presidential Decree No. 1227 which states that a military base is
“any military, air, naval, coast guard reservation, base, fort, camp,
arsenal, yard, station, or installation in the Philippines.”199 A
military base connotes the presence, in a relatively permanent
degree, of troops and facilities in a particular area.200
In 2004, the U.S. DoD released Strengthening U.S. Global
Defense Posture, a report to U.S. Congress about the renewed U.S.
global position.201 The U.S. DoD redefined and reclassified their
military bases in three categories:
_______________
198 US Department of Defense, Joint Publication 1-02, Department of Defense

Dictionary of Military and Associated Terms, p. 21 (2015), available at
<http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf>.
199 Presidential Decree No. 1227, Section 2.
200 IV Record, Constitutional Commission, p. 86 (September 18, 1986):
Fr. Bernas: By the term ‘bases,’ were we thinking of permanent bases?
Mr. Maambong: Yes.
201 US DoD, Strengthening U.S. Global Defense Posture: Report to Congress,
U.S. Department of Defense, pp. 10-11 (2004). Available at
http://www.dnizhawaii.org/wp-content/uploads/2008/12/global_posture.pdf.

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Main Operating Base (MOB)
Main operating bases, with permanently stationed combat

forces and robust infrastructure, will be characterized by
command and control structures, family support facilities, and
strengthened force protection measures. Examples include
Ramstein Air Base (Germany), Kadena Air Base (Okinawa,
Japan), and Camp Humphreys (Korea).
Forward Operating Site (FOS)
Forward operating site will be an expandable “warm

facilities” maintained with a limited US military support
presence and possibly prepositioned equipment. FOSs will
support rotational rather than permanently stationed forces
and be a focus for bilateral and regional training. Examples
include the Sembawang port facility in Singapore and Soto
Cano Air Base in Honduras.

The following are the key characteristics of an FOS:
First, an FOS is an expandable/scalable facility. Andrew
Krepinevich and Robert Work noted that an FOS can support both
small and large forces, and can be readily expanded to serve as
expeditionary or campaign bases should a crisis erupt nearby.202
Second, the facility is maintained or “kept warm” by limited U.S.
military support personnel or U.S. military contractors. It hosts
rotational rather than permanently stationed forces. An FOS may
also house prepositioned equipment.
Finally, an FOS facility does not need to be owned by the U.S.
(i.e., the Sembawang Port Facility and the Paya Lebar Airfield in
Singapore). FOSs are generally bases that support forward-deployed
rather than forward-based forces.203
_______________
202 Krepinevich, Andrew and Work, Robert, A New Global Defense Posture for
the Second Transoceanic Era, p. 19 (2007).
203 Id., at p. 18.

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The third classification of military bases is a Cooperative
Security Location, described as follows:
Cooperative Security Location (CSL)
Cooperative security locations will be facilities with little or

no permanent U.S. presence. Instead they will be maintained
with periodic service, contractor, or host-nation support.
CSLs will provide contingency access and be a focal point for
security cooperation activities. A current example of a CSL is
in Dakar, Senegal, where the U.S. Air Force has negotiated
contingency landing, logistics, and fuel contracting
arrangements, and which served as a staging area for the 2003
peace support operation in Liberia.204

The GDPR emphasized that the U.S.’s plan is to establish a
network of FOSs and CSLs in Asia-Pacific to support the global
war on terrorism and to provide multiple avenues of access for
contingency operations. These facilities serve to expand training
opportunities for the U.S. and the host-country. FOSs and CSLs
allow U.S. forces to use these areas in times of crisis while avoiding
the impression of establishing a permanent presence.205 Notably,
these access agreements are less expensive to operate and maintain
than MOBs.206 Moreover, FOSs and CSLs allow overseas military
presence with a lighter footprint.207
To go back to the EDCA, it notably allows the U.S. to use the
Agreed Locations for the following activities: “training,
_______________
204 US DoD, supra note 201.

205 Charbonneau, Bruno and Cox, Wayne, Locating Global Order: American
Power and Canadian Security after 9/11, p. 65 (2010).
206 Pettyjohn, Stacie, “Minimalist International Interventions: For the Future US
Overseas Presence, Access Agreement Are Key” Summer 2013, RAND Corporation,
available at http://www.rand.org/pubs/periodicals/rand-
review/issues/2013/summer/for-the-future-us-overseaspresence.html.
207 Id., at p. 2.

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transit, support and related activities, refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels,
and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and
materiel; deploying forces and materiel and such other activities as
the Parties may agree.”208
In order to carry out these activities, the EDCA allows U.S.
military personnel to enter and remain in Philippine territory. It
grants the U.S. the right to construct structures and assemblies.209 It
also allows the U.S. to preposition defense equipment, supplies and
materiel.210 The U.S. personnel may also use the Agreed Locations
to refuel aircraft and bunker vessels.211
Stockpiling of military materiel in the Philippines is explicitly
permitted under the following EDCA provisions:
1. Article III, par. 1: The activities allowed on the agreed
locations include: (i) the prepositioning of equipment,
supplies, and materiel; (ii) deploying forces and materiel; and
(iii) such other activities as the Parties may agree.
2. Article IV, par. 1: U.S. forces are allowed to preposition
and store defense equipment, supplies, material
(“prepositioned materiel”), including, but not limited to,
humanitarian assistance and disaster relief equipment,
supplies, and materiel, at agreed locations.
3. Article IV, par. 3: The prepositioned materiel is for the
exclusive use of U.S. forces and full title shall belong to the
U.S.
_______________
208 EDCA, Article III, Section 1.

209 Id., Article V, Sec. 2.
210 Id., Article IV, Sec. 1.
211 Id.

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4. Article IV, par. 4: The U.S. forces and U.S. contractors
shall have unimpeded access to the agreed locations for all
matters relating to the prepositioning and storage of
defense equipment, supplies, and materiel, including
delivery, management, inspection, use, maintenance, and
removal of such equipment, supplies and materiel.

Notably, neither the 1951 MDT nor the 1998 VFA authorized
stockpiling. The 1951 MDT focused on developing the Philippines
and the U.S.’s capacity to resist an armed attack while 1998 VFA
focused on the entry and exit of US troops in the country. No
provision in either treaty specifically allows stockpiling of military
materiel.
In sum, the Agreed Locations mentioned in the EDCA are areas
where the U.S. can perform military activities in structures built by
its personnel. The extent of the U.S.’ right to use of the Agreed
Locations is broad enough to include even the stockpiling of
weapons and the shelter and repair of vessels over which the U.S.
personnel has exclusive control. Clearly, this is a military base as
this term is ordinarily understood.
Further, as we held in Bayan, Article XVIII, Section 25 refers to
three different situations: the presence of foreign military bases,
troops, or facilities.212 Even assuming that the EDCA is not a
basing agreement, it nevertheless involves the deployment of
troops and facilities in Philip-
_______________
212 BAYAN (Bagong Alyansang Makabayan) v. Zamora, supra note 69 at p. 653;

p. 482.

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pine soil. As I have already stated, the EDCA allows U.S. forces
to enter and remain in the Philippines. It defines U.S. forces to
include U.S. military and civilian personnel and U.S. Armed Forces
property, equipment, and materiel.213 The EDCA itself provides that
the U.S. can deploy forces and materiel in the Agreed Locations.214
In like manner x x x 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.
That the EDCA allows this arrangement for an initial period of
10 years, to continue automatically unless terminated,215 is further
proof that it pertains to the presence in Philippine soil of foreign
military bases, troops, and facilities on a more or less permanent
basis.
Note, at this point, that the Senators, during the ratification of the
1998 VFA, observed that it only covers temporary visits of U.S.
troops and personnel in the country. These Senators gave their
consent to the 1998 VFA on the knowledge that the U.S. forces’
stay in the country may last only up to three weeks to six months
per batch.216
This temporary stay of U.S. forces in the Philippines under the
1998 VFA means that it does not cover, or approve of, a more
permanent stay of US forces and their equipment in the Philippines.
Significantly, this is the key characteristic of the Agreed Locations in
the EDCA. For, if the EDCA had not envisioned the stay of U.S.
forces and equipment in the Agreed Locations in the Philippines for
a period longer than envisioned in the 1998 VFA, it would not have
added obligations regarding the storage of their equipment and
materiel. The more permanent nature of the EDCA, in contrast to the
1998 VFA,
_______________
213 EDCA, Article II, Section 2.

214 Id., Article III, Sec. 1.
215 Id., Article XII, Sec. 4.
216 The senators argued the precise length of time but agreed that it would not
exceed six months. See Senate deliberations on P.S. Res. No. 443 – Visiting Forces
Agreement, May 17, 1999, Record and Archives Service, Vol. 133, pp. 23-25.

608


indicates a change in the tenor of the agreement in the EDCA,
one that does not merely implement the 1998 VFA.

V.D(2) Does the EDCA Merely Implement
the 1951 MDT?

This question responds to the ponencia’s argument that the
EDCA can be embodied in an executive agreement because it
merely provides implementing details for the 1951 MDT.217

V.D(2)(i) The Effects of the Expiration
of the 1947 MBA and of the Adoption of
the 1987 Constitution

The sequence of events relating to American bases, troops, and
facilities in the Philippines that took place since Philippine
independence, is critical in responding to the question in caption. It
should be remembered that as a condition under the Tydings-
McDuffie Act for the grant of Philippine independence, the
Philippines was bound to negotiate with the U.S. for bases in the
Philippines, resulting in the 1947 MBA.
This agreement contained the detailed terms relating to the
existence and operation of American bases and the presence of
American forces and facilities in the Philippines. As its title denotes,
the 1951 MDT is the treaty providing for alliance and mutual
defense against armed attack on either country; it only generally
contained the defense and alliance relationship between the
Philippines and the U.S.
In 1987, the Philippines adopted a new Constitution. This Charter
directly looked forward to the expiration of the 1947 MBA and
provided for the terms under which foreign military bases, troops,
and facilities would thereafter be allowed into the Philippines. The
1947 MBA expired in 1991 and no replacement treaty took its place;
thus, all the detailed ar-
_______________
217 Ponencia, pp. 375-402.

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rangements provided under the 1947 MBA for the presence of
U.S. bases, troops and facilities also ended, leaving only the 1951
MDT and its general terms in place.
Under this situation, the detailed arrangements that expired with
the 1947 MBA were not carried over to the 1951 MDT as this treaty
only generally provided for the defense and alliance relationship
between the U.S. and the Philippines. Thus, there were no specific
policies on military bases, troops, and facilities that could be
implemented and operationalized by subsequent executive
agreements on the basis of the MDT.
In particular, the terms of the 1947 MBA that had expired and
had not been renewed cannot be deemed carried over to the 1951
MDT. If any such future agreements would be made after the
effectivity of the 1987 Constitution, then such agreements would
be governed by Article XVIII, Section 25 of the new Constitution.
Significantly, when the 1987 Constitution and its Article XVIII,
Section 25 took effect, no absolute prohibition against the
introduction of new U.S. bases, troops, and facilities was put in
place. In fact the 1951 MDT then still existed as a general defense
alliance of the Philippines and the U.S. against armed attack by third
parties. But the introduction of military bases or their equivalent, of
troops, and of military facilities into the Philippines can now only
take place by way of a treaty concurred in by the Senate.

V.D(2)(ii) The 1951 MDT examined in light
of the EDCA

That the EDCA is purely an implementation of the 1951 MDT
and does not need to be in the form of a treaty, is not tenable for two
reasons.
First, the EDCA grants rights and privileges to the U.S. that go
well beyond what is contemplated in the 1951 MDT and the 1998
VFA.

610


Second, even the assumptions that the EDCA is indeed a mere
implementation of both the earlier 1951 MDT and the 1998 VFA,
this assumption by no means provides an argument in favor of
treating the EDCA as an executive agreement. Notably, the 1998
VFA is also recognized as an implementation of the 1951 MDT yet
the Government deemed it necessary to have it embodied in a
separate treaty concurred in by the Senate.
On the first argument, an analysis of the 1951 MDT, the 1998
VFA, and the EDCA reveals that the EDCA is a stand-alone
agreement.
The 1951 MDT is a treaty intended for the collective defense of
its signatory countries (i.e., the U.S. and the Philippines) against
external armed attack. This is apparent from its declaration of
policies which states, among others, that the U.S. and the Philippines
have agreed to the MDT in pursuit of their desire to —

x x x 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.218

The rest of the text of the 1951 MDT consistently highlights this
goal. Its Article II states that the parties shall “separately and jointly
by self-help and mutual aid maintain and develop their individual
and collective capacity to resist armed attack.” Article III provides
that the parties shall “consult together” regarding the
implementation of the MDT whenever in their opinion the
“territorial integrity, political independence or security of either of
the parties is threatened by external armed attack in the Pacific.”
Article IV declares that an armed attack in the Pacific area on either
of the par-
_______________
218 1951 MDT, Preamble, par. 3.

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ties would be dangerous to each other’s peace and safety and thus
they would act to meet the common danger. Article V then proceeds
to define an armed attack as to include an armed attack on “the
metropolitan territory of either parties or on the island territories
under its jurisdiction in the Pacific Ocean, its armed forces, public
vessels and aircrafts in the Pacific.”
This Court has had occasion to explain the nature of the 1951
MDT. In Lim v. Executive Secretary,219 we said —

x x x The MDT has been described as the core of the
defense relationship between the Philippines and its traditional
ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint
training with its American counterparts x x x. [Emphasis
supplied]

Thus, the essence of the 1951 MDT is the conduct of joint
activities by the U.S. and the Philippines in accordance with the
dictates of collective defense against an attack in the Pacific. This is
a focus that the EDCA lacks.

V.D(2)(iii) The 1951 MDT Compared with Other
Defense Alliance Agreements

Our military obligations to the U.S. under the 1951 MDT are (1)
to maintain and develop our military capacity to resist armed attack,
and (2) to recognize that an armed attack against the U.S. in the
Pacific is an attack on the Philippines and to meet the common
danger in accordance with our constitutional process. The relevant
provisions read:

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
_______________
219 Supra note 179 at pp. 571-572; p. 752.

612


their individual and collective capacity to resist armed
attack.
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 purposes 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.

(Fortunately, the limits of the 1951 MDT have not been tested in
actual operation since neither the Philippines nor the U.S. has as yet
been the subject of an armed attack in the Pacific region.)
In relating the 1951 MDT to the EDCA, I glean from the
ponencia the intent to seize the term “mutual aid” in developing the
contracting parties’ collective capacity to resist an armed attack, as
basis for the US to establish a military base or a military facility or
station military troops in the Philippines.220 This reading, however,
would be a novel one in the context of American agreements with
other Asian countries with their own alliance and MDTs with the
U.S.
_______________
220 Ponencia, pp. 378-383.

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Note that Article II of the RP-U.S. 1951 MDT is similar to the
following provisions in other MDTs:
(1) The 1953 US-South Korean MDT

Article II
The Parties will consult together whenever, in the opinion
of either of them, the political independence or security of
either of the Parties is threatened by external armed attack.
Separately and jointly, by self-help and mutual aid, the Parties
will maintain and develop appropriate means to deter armed
attack and will take suitable measures in consultation and
agreement to implement this Treaty and to further its
purposes.221

(2) The 1954 US-Taiwan (Republic of China) MDT

Article II
collective capacity to resist armed attack and communist
subversive activities directed from without against their
territorial integrity and political stability.222
(3) the 1960 US-Japan Treaty of Mutual Co-operation and

Security
_______________
221 Mutual Defense Treaty, U.S.-South Korea, October 1, 1953, 238 U.N.T.S.
202, 204, available at
222 Mutual Defense Treaty, U.S.-Taiwan, December 10, 1954, 248 U.N.T.S. 214,
available at https://treaties.un.org/doc/Publication/UNTS/Volume%20248/v238.pdf.

614


Article III
The Parties, individually and in cooperation with each
other, by means of continuous and effective self-help and
mutual aid will maintain and develop, subject to their
constitutional provisions, their capacities to resist armed
attack.223

With little variance,224 these articles are essentially identical to
Article II of the RP-U.S. 1951 MDT.
But notably, despite the existence of the above mentioned
provisions, all three treaties also saw the need to include a separate
provision explicitly granting the U.S. the right to access and use of
areas and facilities of the other contracting party. Thus:

Article IV
(US-Korea)
The Republic of Korea grants, and the United States of
America accepts, the right to dispose United States land, air
and sea forces in and about the territory of the Republic of
Korea as determined by mutual agreement.225
_______________
223 Treaty of Mutual Cooperation and Security, U.S.-Japan, January 19, 1960,
373 U.N.T.S. 188, available at
224 The US-Taiwan MDT states that self-help and mutual aid will be utilized by
the Parties to resist not only an armed attack but also “communist subversive
activities directed against Taiwan’s territorial integrity and political stability.”
Moreover, the US-Korean Treaty adds the phrase “whenever, in the opinion of either
of them, the political independence or security of either of the Parties is threatened by
external armed attack” and uses the phrase “means to deter [an] armed attack”)
instead of “maintain and develop x x x their capacities to resist armed attack.”
225 Mutual Defense Treaty, U.S.-South Korea, supra note 221.

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Article VII
(US-Taiwan)
The Government of the Republic of China (Taiwan) grants,
and the Government of the United States of America accepts,
the right to dispose such United States land, air and sea
forces in and about Taiwan and the Pescadores as may be
required for their defense, as determined by mutual
agreement.226
Article VI
(US-Japan)
For the purpose of contributing to the security of Japan
and the maintenance of international peace and security in the
Far East, the United States of America is granted the use
by its land, air and naval forces of facilities and areas in
Japan.
The use of these facilities and areas as well as the status of
United States armed forces in Japan shall be governed by a
separate agreement, replacing the Administrative Agreement
under Article III of the Security Treaty between Japan and the
United States of America, signed at Tokyo on February 28,
1952, as amended, and by such other arrangements as may be
agreed upon.227
These three articles do not have any counterpart in the RP-US

1951 MDT. Understandably perhaps, counterpart provisions are not
in the 1951 MDT as our commitment to grant the U.S. use and
access to areas and facilities in the Philippine territory was
embodied in an earlier agreement, the 1947 MBA (which, however,
expired, thus ending the use and access grants to the U.S. and its
armed forces).
In my view, the implication of the above quoted provisions in the
US-South Korea, US-Taiwan, and US-Japan treaties
_______________
226 Mutual Defense Treaty, U.S.-Taiwan, supra note 222.

227 Treaty of Mutual Cooperation and Security, U.S.-Japan, supra note 223.

616


(on “mutual aid”) is clear: the obligation to provide mutual aid
under Article II of the RP-US 1951 MDT (and its counterpart
provisions) does not include the obligation to allow the entry and
the stationing of U.S. troops or the establishment of military
bases or facilities.
In light particularly of the constitutional developments in 1987,
the 1951 MDT cannot be invoked as an umbrella agreement that
would legally justify the grant to the U.S. of entry, access, and use of
Philippine-owned areas or facilities without Senate concurrence.
These activities, which the EDCA seeks to do allegedly pursuant to
the 1951 MDT, do not fall within the purview of our commitments
under the earlier treaty.

V.D(3) Does the EDCA Merely Implement the
1998 VFA?

Is the EDCA merely an agreement implementing the 1998 VFA
which already allows the limited entry of U.S. military troops and
the construction of facilities?
The quick and short answer to the above question is — No, the
EDCA does not implement the 1998 VFA as the EDCA in fact
provides a wider arrangement than the 1998 VFA with respect to the
entry of military bases, troops, and facilities into the Philippines. A
naughty view is that the 1998 VFA should form part of the EDCA
and not the other way around. Another reality, based on the treaty-
executive agreement distinctions discussed above, is that the EDCA
introduces new arrangements and obligations to those existing
under the 1998 VFA; hence, the EDCA should be in the form of a
treaty.

V.D(3)(i) The 1998 Visiting Forces Agreement

The Philippines’ primary obligation under the 1998 VFA, is to
facilitate the entry and departure of U.S. personnel in rela-

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tion with “covered activities”;228 it merely defines the treatment
of U.S. personnel visiting the Philippines; hence, its name.229 It is in
fact a counterpart of the NATO-SOFA that the U.S. forged in
Europe.
The Preamble of the VFA defines its objectives — to govern the
terms of visits of “elements of the United States Armed Forces” to
the Philippines, while the body of the agreement contains the agreed
conditions. To quote from the relevant provisions of the 1998 VFA:

VISITING FORCES AGREEMENT
Preamble

The Government of the Republic of the Philippines and the
Government of the United States of America,
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;
_______________
228 1998 VFA, Article III(1).

229 BAYAN (Bagong Alyansang Makabayan) v. Zamora, supra note 69. 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.

618


Considering that cooperation between the Republic of the
Philippines and the United States 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:

Article I: Definitions
approved by the Philippine Government. x x x

x x x x
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. x x x

As the ponencia correctly observed, the 1998 VFA itself does not
specify what “activities” would allow the entry of U.S. troops into
the Philippines. The parties left this open and recognized that the
activities that shall require the entry of U.S. troops are subject to
future agreements and the approval by the Philippine Government.
How this approval, however, will be secured is far from certain.
What is certain is that beyond the restrictive “visits” that the 1998
VFA mentions, nothing else is said under the express terms of the
Agreement.
Harking back to the 1947 MBA and its clear and certain terms,
what comes out boldly is that the 1998 VFA is not an agreement
that covers “activities” in the way that the 1947 MBA did; it is
simply an agreement regulating the status of and the treatment to
be accorded to U.S.

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armed forces personnel and their aircraft and vehicles while
visiting the Philippines. The agreement itself does not authorize
U.S. troops to permanently stay in the Philippines nor authorize any
activity related to the establishment and the operation of bases, as
these activities had been defined under the 1947 MBA.
As discussed under the treaty-executive agreement distinctions
above, if indeed the activities would be in line with the original
intent of the 1998 VFA, then an executive agreement would suffice
as an implementing agreement. On the other hand, if the activity
would be a modification of the 1998 VFA or would be beyond its
terms and would entail the establishment of a military base or
facility or their equivalent, and the introduction of troops, then, a
treaty duly concurred in by the Senate would be the appropriate
medium of the U.S.-Philippines agreement.
This Court has had the opportunity to examine the 1998 VFA in
BAYAN230 and described the agreement in this wise —

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.

In Lim v. Executive Secretary,231 this Court further explained:
The VFA provides the “regulatory mechanism” by which

“United States military and civilian personnel [may visit]
approved by the Phil-
_______________
230 Id.
231 Supra note 179 at p. 572; p. 752.

620


ippine Government.” It contains provisions relative to
entry and departure of American personnel, driving and
vehicle registration, criminal jurisdiction, claims, importation
and exportation, movement of vessels and aircraft, as well as
the duration of the agreement and its termination. [Emphasis
supplied]

The 1998 VFA allows the entry of U.S. military personnel to
Philippine territory and grants the U.S. specific rights; it is
essentially an agreement governing the rules for the visit of “US
armed forces in the Philippines from time to time”232 in pursuit of
cooperation to promote “common security interests”; it is essentially
a treaty governing the sojourn of US forces in this country for joint
exercises.233
Significantly, the 1951 MDT and the 1998 VFA contain a similar
feature — joint activities in pursuit of common security interests.
The EDCA, on the other hand, goes beyond the terms of the 1951
MDT and the 1998 VFA.
As explained above, the EDCA has two purposes. First, it is an
agreement for the conduct of joint activities in accordance with the
1951 MDT and the 1998 VFA. This, however, is not the centerpiece
of the EDCA. Its centerpiece is the introduction of agreed
Locations which are portions of the Philippine territory whose use
is granted to the U.S.234 The EDCA then proceeds to list the rights
that the U.S. has over the Agreed Locations.235
_______________
232 1998 VFA, Preamble, par. 4.

233 Lim v. Executive Secretary, supra note 179 at p. 575; p. 755. 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 nations 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.
234 EDCA, Article II(4).

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A reading of the EDCA’s provisions shows that the rights and
privileges granted to the U.S. do not always carry a concomitant
right on the part of the Philippines nor do they involve joint
exercises. While the EDCA mentions that the Agreed Locations may
be used for “security cooperation exercises”236 and “joint and
combined training activities,”237 the provisions of the EDCA also
provide for the conduct of other activities beyond the 1951 MDT and
the 1998 VFA.
Within the Agreed Locations, the U.S. may conduct trainings for
its troops, transit, support and related activities.238 The EDCA also
allows the U.S. to use the Agreed Locations to refuel aircraft, bunker
vessels, temporarily maintain vehicles, vessels and aircraft.239
Significantly, it does not provide for any qualification on the purpose
for the entry of these vessels, vehicles, and aircraft into Philippine
jurisdiction.
The EDCA also permits the temporary accommodation of
personnel,240 again without any qualification as to the purpose of
their visit. The U.S. forces may also engage in communications
activities including the use of its own radio spectrum,241 similarly
without any limitation as to the purpose by which such
communications shall be carried out.
Further, within the Agreed Locations, the U.S. can also
preposition defense equipment, supplies, and materiel over which
the U.S. forces shall have exclusive use and control.242 Clearly, the
right to deploy weapons can be undertaken even if it is not in the
pursuit of joint activities for common security interests.
_______________
236 Id., Article I(3).

237 Id.
239 Id.
240 Id.
241 Id., Article VII(2)
242 Id., Article IV(1), (3).

622


These rights, granted to the U.S. under the EDCA, do not
contain an element of mutuality in the sense that mutuality is
reflected in the 1951 MDT and the 1998 VFA. As these rights go
beyond the earlier treaties and are, in fact, independent sources of
rights and obligations between the U.S. and the Philippines, they
cannot be mere details of implementation of both the 1951 MDT and
the 1998 VFA.
And, as pointed out earlier, the Agreed Locations under the
EDCA are akin to the military bases contemplated under the 1947
MBA. Thus, by its own terms, the EDCA is not only a military base
agreement outside the provisions of the 1951 NlDT and the 1998
VFA, but a piecemeal introduction of military bases in the
Philippines.
Note that, at this point, there exists no agreement on the
establishment of U.S. military bases in the Philippines; the EDCA
reintroduces a modernized version of the fixed military base
concept contemplated and operationalized under the 1947 MBA.

V.D(4) The 1951 MDT and 1998 VFA in con-
junction with the EDCA

An additional dimension that the EDCA introduces — the
treatment of U.S. forces and U.S. contractors — reveals that it does
not merely implement the 1951 MDT and the 1998 VFA, but adds to
the obligations in these agreements.
To support its conclusion that the EDCA implements the
provisions in the 1951 MDT and the 1998 VFA, the ponencia points
out that the EDCA references 1951 MDT and the 1998 VFA in
allowing the entry of U.S. personnel and U.S. forces in the
Philippines, and that the entry of U.S. contractors (who had not been
mentioned in the 1998 VFA) do not contradict the obligations found
in the 1998 VFA.
The ponencia further notes that the U.S. contractors had been
expressly excluded from the definition of U.S. personnel and U.S.
forces, in line with their definitions in the 1998

623
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VFA.243 They are not entitled to the same privileges that U.S.
Personnel and U.S. forces enjoy under the 1998 VFA, but would
have to comply with Philippine law to enter the Philippines.
The ponencia proceeds to argue that the lack of dissimilarities
between the 1998 VFA and the EDCA point to the conclusion that
the EDCA implements the 1998 VFA. By limiting the entry of
persons under the EDCA to the categories under the 1998 VFA, the
EDCA merely implements what had already been agreed upon under
the 1998 VFA. The U.S. forces’s authorization to perform activities
under the EDCA does not change the nature of the EDCA as the
1998 VFA’s implementing agreement, as the term “joint exercises”
under the 1998 VFA denotes a wide range of activities that include
the additional activities under the EDCA.
That the 1998 VFA and the EDCA are not dissimilar in terms of
their treatment of U.S. forces and U.S. personnel, does not
automatically mean that the EDCA simply implements the 1998
VFA, given the additional obligations that the EDCA introduces for
the Philippine government.
As earlier discussed, the EDCA introduces military bases in the
Philippines within the concept of the 1987 Constitution, and it is in
light of these additional obligations that the EDCA’s affirmation of
the 1998 VFA should be viewed: the EDCA adds new dimensions
to the treatment of U.S. Personnel and U.S. forces provided in the
1998 VFA, and these dimensions cannot be ignored in determining
whether the EDCA merely implements the 1998 VFA.
Thus, while the EDCA affirms the treatment of U.S. personnel
and U.S. forces in the Philippines, it at the same time introduces the
Philippines’ obligation to recognize the authority of U.S. Forces in
the “Agreed Locations.” Under the EDCA, U.S. forces can now
preposition and store defense equipment, supplies, and materiel at
Agreed Locations. They
_______________
243 Ponencia, pp. 385-388.

624


shall have unimpeded access to Agreed Locations for all matters
relating to the prepositioning and storage of defense equipment,
supplies, and materiel. Lastly, the EDCA authorizes the U.S. forces
to exercise all rights and authorities within the Agreed Locations
that are necessary for their operational control or defense. In
contrast, the 1998 VFA only refers to the tax and duty-free entry of
U.S. Government equipment in connection with the activities during
their visit.
In the same manner, and despite being in a different class as U.S.
personnel and U.S. forces, U.S. contractors are also allowed
“unimpeded access” to the Agreed Locations when it comes to all
matters relating to the prepositioning and storage of defense
equipment, supplies and materiel.
Thus, these groups of people (U.S. personnel, U.S. forces and
U.S. contractors) have been referred to in the EDCA not merely to
implement the 1998 VFA, but to further their roles in the Agreed
Locations that the EDCA authorizes.
From these perspectives, the EDCA cannot be considered to be a
simple implementation of the 1998 VFA. Rather, it is a continuation
of the 1998 VFA under new dimensions. These dimensions should
not and cannot be hidden behind reaffirmations of existing 1998
VFA obligations. These added dimensions reinforce the idea of
military bases, as it allows them access to the Agreed Locations that,
as I had earlier mentioned, is the cornerstone of the EDCA. From the
legal end, the obligations under the EDCA, not its policy
declarations and characterization, should be decisive in
determining whether Section 25, Article XVIII applies.
Lastly, even assuming that the EDCA is an implementation of the
1951 MDT and the 1998 VFA, the practice of the Government
reveals that even when an agreement is considered as an
implementation of a prior treaty, the concurrence of the Senate must
still be sought.
Early in the Senate deliberations on the 1998 VFA, the senator-
sponsors characterized it merely as a subsidiary or

625
VOL. 779, JANUARY 12, 2016 625


implementing agreement to the 1951 MDT.244 Nevertheless,
Senator Tatad, one of the 1998 VFA’s co-sponsors, recognized that
Article XVIII, Section 25 of the Constitution prohibits the 1998
VFA from being executed as a mere executive agreement,245 for
which reason it was sent to the Senate for concurrence.
The senators agreed during the deliberations that an agreement
implementing the 1951 MDT requires Senate concurrence.246 This is
because the agreement, despite implementing or affirming the 1951
MDT, allows the entry of U.S. troops in the Philippines, a matter
covered by Article XVIII, Section 25 of the Constitution.
Indeed, the 1998 VFA has been consistently treated as an
implementation of the 1951 MDT. Nevertheless, the Government
correctly chose to enter into the international agreement in the form
of a treaty duly concurred in by the Senate, because it involves the
entry of foreign military troops independent of, and in addition to,
the general agreements in the 1951 MDT.
In the same manner, the EDCA, which purportedly implements
and complements both the 1951 MDT and the 1998 VFA, should
have likewise been submitted to the Senate for its concurrence
because of the new obligations it introduces.
_______________
244 Id.
245 Senate deliberations, May 25, 1999, AM, p. 17, which reads:
Senator Tatad. x x x Mr. President, distinguished colleagues, the Visiting Forces
Agreement does not create a new policy or a new relationship. It simply seeks to
implement and reinforce what already exists.
For that purpose, an executive agreement might have sufficed, were there no
constitutional constraints. But the Constitution requires the Senate to concur in
all international agreements. So the Senate must concur in the Visiting Forces
Agreement, even if the U.S. Constitution does not require the U.S. Senate to give its
advice and consent.
246 Senate Resolution No. 1414, supra note 107.

626


To reiterate, the EDCA allows for a more permanent presence of
U.S. troops and military equipment in the Philippines (akin to
establishing a base), which was not contemplated under the 1998
VFA. Thus, despite having been treated as an implementation of the
1951 MDT and the 1998 VFA, the new obligations under the EDCA
calls for the application of Article XVIII, Section 25 of the
Constitution and its submission to the Senate for concurrence.

V.E. The EDCA: the Actual and Operational View

As my last point, let me just say that the ponencia can engage in
a lot of rationalizations and technical distinctions on why the
EDCA provisions do not amount to or equate with the operation of
military bases and the introduction of troops and facilities into the
Philippines. The ponencia cannot escape the conclusion that
translated to actual operational reality:
1. The activities described in the EDCA are no different from the
operation of a military base in the 1947 sense, except that under the
current U.S. strategy, a fixed base in the 1947 sense is hardly ever
established because the expenses and administrative problems
accompanying a fixed base can now be avoided. A military
“facility” can very well serve the same purposes as a fixed military
base under current technological advances in weaponry,
transportation, and communications.247 The U.S. can achieve the
same results at less expense and with lesser problems if it would
have guaranteed access to and control of speci-
_______________
247 During the latter part of the Cold War, the term “facilities” was frequently
substituted for the word “bases” to soften the negative political overtones normally
associated with the basing of foreign troops in a sovereign country. In line with this
thinking, the Stockholm International Peace Research Institute uses the term foreign
military presence (FMP) to describe bases/facilities that house foreign troops in a
sovereign state. See Krepinevich and Work, supra note 202.

627
VOL. 779, JANUARY 12, 2016 627


fied areas such as the Agreed Locations that the EDCA
conveniently provides.
FOSs or CSLs, as defined above, are expandable “warm
facilities” maintained with limited U.S. military support presence
and possibly prepositioned equipment.248 FOSs will support
rotational rather than permanently stationed forces, and will be a
focus for bilateral and regional training and for the deployment of
troops and stored and prepositioned equipment, supplies, and
materiel.249
As has already been mentioned, examples include the
Sembawang port facility in Singapore and Soto Cano Air Base in
Honduras. The Philippines will soon follow without the consent of
the Filipino people and against the constitutional standards they set,
if EDCA would be enforced without the benefit of Senate
concurrence.
2. Under the “pivot to Asia strategy,” the operative word is
“presence” which means ready access to equipment, supplies, and
materiel by troops who can be ferried from safer locations and
immediately be brought to the scene of action from the Agreed
Locations. The EDCA provides such presence through the Agreed
Locations; the access to these secured locations; the prepositioning
and storage of defense (read as “military”) equipment, supplies, and
materiel; and the forward jump-off point for the deployment of
troops to whatever scene of action there may be that Philippine
locations may serve best.
3. From the point of view of “troops” that Article XVIII, Section
25 likewise regulates through Senate concurrence, note that in the
EDCA, contractual employees are mentioned together or side-by-
side with the military. This is a relatively recent development where
contractual em-
_______________
248 Strengthening U.S. Global Defense Posture: Report to Congress, supra note
201.
249 Id.

628


ployees are used to provide the same services and serve hand in
hand or as replacement or to augment regular military forces. The
U.S. has put these contractual employees to good use in various
local theaters of conflict, notably in Iraq, Afghanistan and Syria.250
The U.S. has reportedly resorted to the use, not only of regular
military forces, but of contractual employees who may provide the
same services as military forces and who can increase their numbers
without alerting the U.S. public to the actual number of troops
maintained.

VI. Conclusion and the Question of Remedy

Based on all the above considerations, I conclude that the EDCA,
instead of being in implementation of the 1951 MDT and the 1998
VFA, is significantly broader in scope than these two treaties, and
effectively added to what the 1951 MDT and the 1998 VFA provide.
The EDCA is thus a new agreement that touches on military
bases, troops, and facilities beyond the scope of the 1951 MDT and
the 1998 VFA, and should be covered by a treaty pursuant to Article
XVIII, Section 25 and Article VII, Section 21, both of the 1987
Constitution. Without the referral and concurrence by the Senate, the
EDCA is constitutionally deficient and, hence, cannot be enforced in
our country.
To remedy the deficiency, the best recourse RECOMMENDED
TO THE COURT under the circumstances is for the Court to
suspend the operations of its rules on the finality of its rulings and
for the Court to give the President ninety (90) days from the
service of its Decision, whether or not a motion for
reconsideration is filed,
_______________
250 See Gomez del Prado, Jose, Privatization of War: Mercenaries, Private
Military and Security Companies, Global Research, November 8, 2010, available at
http://www.globalresearch.ca/the-privitazation-of-war-mercenaries-private-military-
and-security-companies-pmsc/21826.

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the OPTION to refer the EDCA to the Senate for its
consideration and concurrence.
The referral to the Senate shall serve as a main or supplemental
motion for reconsideration that addresses the deficiency, rendering
the effects of the Court’s Decision moot and academic. Otherwise,
the conclusion that the President committed grave abuse of
discretion by entering into an executive agreement instead of a
treaty, and by certifying to the completeness of Philippine internal
process, shall be fully effective.
As my last point, we must not forget that the disputed executive
agreement that the President entered into is with the Americans
from whom we trace the roots of our present Constitution. The
Americans are a people who place the highest value in their
respect for their Constitution. This should be no less than the spirit
that should move us in adhering to our own Constitution. To
accord a lesser respect for our own Constitution is to invite
America’s disrespect for the Philippines as a coequal sovereign
and independent nation.

DISSENTING OPINION

“Para kayong mga birhen na naniniwala sa pag-ibig ng isang
puta!”1
– Heneral Luna kina Pedro Paterno, Felix Buencamino, at
Emilio Aguinaldo noong sinabi nila na nangako ang mga
Amerikano
na kikilalanin nila ang kasarinlan ng mga Pilipino
LEONEN, J.:

1987 Constitution, Article XVIII, Section 25:

After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of
_______________
1 Heneral Luna, Dir. Jerrold Tarog, Artikulo Uno Productions (2015). The
inclusion of this quote is to emphasize its metaphor and not meant in any way to
denigrate the human dignity of commercial sex workers.

630


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.

In a disturbing turn of events, the majority of this court just
succeeded in amending this constitutional provision. At the very
least, it emasculated its text and weakened its spirit.
An agreement signed by our Secretary of Defense and the
Ambassador of the United States that grants United States military
personnel and their contractors operational control over unspecified
locations within Philippine territory in order to pre-position military
equipment as well as to use as launching pads for operations in
various parts of the globe is not binding until it is concurred in by
the Senate. This is in accordance with Article XVIII, Section 25 and
Article VII, Section 21 of the Constitution.
Furthermore, the Enhanced Defense Cooperation Agreement
(EDCA) does not simply implement the Agreement Between the
Government of the United States of America and the Government of
the Republic of the Philippines Regarding the Treatment of United
States Armed Forces Visiting the Philippines (Visiting Forces
Agreement or VFA). The EDCA substantially modifies or amends
the VFA. An executive agreement cannot amend a treaty. Nor can
any executive agreement amend any statute, most especially a
constitutional provision.
The EDCA substantially modifies or amends the VFA in the
following aspects:
First, the EDCA does not only regulate the “visits” of foreign
troops. It also allows the temporary stationing on a rotational basis
of US military personnel and their contractors in physical locations
with permanent facilities and pre-positioned military materiel.

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Second, unlike the VFA, the EDCA allows pre-positioning of
military materiel, which can include various types of warships,
fighter planes, bombers, and vessels, as well as land and amphibious
vehicles and their corresponding ammunition.
Third, the VFA contemplates the entry of troops for various
training exercises. The EDCA allows our territory to be used by the
United States to launch military and paramilitary operations to be
conducted within our territory or against targets in other states.
Fourth, the EDCA introduces the following concepts not
contemplated in the VFA or in the 1951 Mutual Defense Treaty,
namely: (a) agreed locations; (b) contractors; (c) pre-positioning of
military materiel; and (d) operational control.
Lastly, the VFA does not have provisions that may be construed
as a restriction or modification of obligations found in existing
statutes. The EDCA contains provisions that may affect various
statutes, including (a) the jurisdiction of courts, (b) local autonomy,
and (c) taxation.
There is no showing that the new matters covered in the EDCA
were contemplated by the Senate when it approved the VFA. Senate
Resolution No. 105, Series of 2015, which expresses the sentiment
of that legislative chamber, is a definite and unequivocal articulation
of the Senate: the VFA was not intended to cover the matters now
included in the EDCA. In the view of the Senate reading the same
provisions of the Constitution as we do, the EDCA should be in
treaty form.
The EDCA, in its current form, is only an official and formal
memorial of agreed provisions resulting from the negotiations with
the United States. The President has the discretion to submit the
agreement to the Senate for concurrence. The EDCA is a treaty and
requires Senate concurrence.

I

The EDCA should comply with Article XVIII, Section 25 of the
Constitution.

632


BAYAN v. Zamora2 interpreted the scope of this provision when it
discussed the constitutionality of the VFA. Similar to the EDCA, the
VFA was a product of negotiations between the two governments
relating to mutual security interests. Unlike the EDCA, however, the
VFA was submitted to the Senate for concurrence, thus:

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 [in] a final series of
conferences and negotiations 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.
On October 6, 1998, the President, acting through
respondent Executive Secretary Ronalda Zamora, officially
transmitted to the Senate of the Philippines, the Instrument of
Ratification, the letter of the President 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 rec-
_______________
2 Bayan (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623; 342 SCRA
449 (2000) [Per J. Buena, En Banc].

633
VOL. 779, JANUARY 12, 2016 633


ommendation. Thereafter, joint public hearings were held
by the two Committees.
On May 3, 1999, the Committees submitted Proposed
Senate Resolution No. 443 recommending the concurrence of
the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates
then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443
was approved by the Senate, by a two-thirds (2/3) vote of its
members. Senate Resolution No. 443 was then renumbered as
Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after
an Exchange of Notes between respondent Secretary Siazon
and United States Ambassador Hubbard.3 (Citations omitted)

BAYAN held that Article XVIII, Section 25 of the Constitution
applies 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.
_______________
3 Id., at pp. 632-637; pp. 464-469.

634


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

635
VOL. 779, JANUARY 12, 2016 635


of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution, is
to accord strict meaning to the phrase.4

Lim v. Executive Secretary5 further explored the scope of the
VFA as it dealt with the constitutionality of the Terms of Reference
of the “Balikatan 02-1” joint military exercises between the
Philippines and the United States:

The Terms of Reference rightly fall within the context of
the VFA.
territory for purposes other than military. As conceived, the
joint exercises may include training on new techniques of
“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.
_______________
4 Id., at pp. 654-657; pp. 486-488.

5 430 Phil. 555; 380 SCRA 739 (2002) [Per J. De Leon, Jr., En Banc].

636


That is not the end of the matter, though. Granted that
“Balikatan 02-1” is permitted under the terms of the VFA,
what may US forces legitimately do in furtherance of their
aim to provide advice, assistance and training in the global
effort against terrorism? Differently phrased, may American
troops actually engage in combat in Philippine territory? The
Terms of Reference are explicit enough. Paragraph 8 of
Section I stipulates that US exercise participants may not
engage in combat “except in self-defense.” We wryly note that
this sentiment is admirable in the abstract but difficult in
implementation. The target of “Balikatan 02-1,” the Abu
Sayyaf, cannot reasonably be expected to sit idly while the
battle is brought to their very doorstep. They cannot be
expected to pick and choose their targets for they will not have
the luxury of doing so. We state this point if only to signify
our awareness that the parties straddle a fine line, observing
the honored legal maxim “Nemo potest facere per alium quod
non potest facere per directum.” The indirect violation is
actually petitioners’ worry, that in reality, “Balikatan 02-1” is
actually a war principally conducted by the United States
government, and that the provision on self-defense serves only
as camouflage to conceal the true nature of the exercise. A
clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the VFA
allow foreign troops to engage in an offensive war on
Philippine territory.6 (Emphasis supplied)

Nicolas v. Romulo7 involved the grant of custody of Lance
Corporal Daniel Smith to the United States pursuant to the VFA and
reiterated the ruling in Bayan:

[A]s an implementing agreement of the RP-US Mutual
Defense Treaty, it was not necessary to submit the VFA
_______________
6 Id., at pp. 575-576; pp. 755-756. “Nemo palest facere per alium quod non palest
facere per directum” translates to “No one is allowed to do indirectly what he is
prohibited to do directly.”
7 598 Phil. 262; 578 SCRA 438 (2009) [Per J. Azcuna, En Banc].

637
VOL. 779, JANUARY 12, 2016 637


to the US Senate for advice and consent, but merely to the US
Congress under the Case-Zablocki 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.8
The controversy now before us involves more than the VFA.
Reading the entirety of the Constitution is necessary to fully
appreciate the context of the interpretation of Article XVIII, Section
25.

II

Foreign policy indeed includes security alliances and defense
cooperation among states. In the conduct of negotiations and in the
implementation of any valid and binding international agreement,
Article II of the Constitution requires:

Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
....
Section 7. The State shall pursue an independent foreign
policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-determination.

Article 2(4) of the Charter of the United Nations similarly
provides that “[a]ll Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or
_______________
8 Id., at pp. 284-285; p. 461.

638


in any other manner inconsistent with the Purposes of the United
Nations.”9
Our use of force is not completely proscribed as the Charter of
the United Nations provides for the inherent right of individual or
collective self-defense:
CHAPTER VII: ACTION WITH RESPECT TO

THREATS TO THE PEACE, BREACHES OF THE
PEACE, AND ACTS OF AGGRESSION
....
Article 51. Nothing in the present Charter shall impair the
inherent right of individual or collective self-defen[s]e if an
armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defen[s]e shall be
immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
international peace and security.10
Furthermore, falling within the penumbra on the use of force are

preemptive self-defense,11 self-help, and humanitarian
interventions.12
_______________
9 Charter of United Nations, Chapter I, Art. 2(4)

<http://www.un.org/en/documents/charter/chapter1.shtml> (visited January 11, 2016).
10 Charter of United Nations, Chapter VII, Art. 51
<http://www.un.org/en/documents/charter/chapter7.shtml> (visited January 11, 2016).
See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
United States of America), I.C.J. 1984 I.C.J. 39
11 See Anthony Clark Arend, International Law and the Preemptive Use of
Military Force, THE WASHINGTON QUARTERLY 26:2, 89-103 (2003). See
Higgins, Rosalyn, Problems and Process: International Law and How We Use It, pp.
242-243 (1994), citing US

639
VOL. 779, JANUARY 12, 2016 639

Another exception would be the collective security system set up

under the Charter of the United Nations, with the Security Council
acting in accordance with Chapter VII of the Charter. Under Article
42:
Should the Security Council consider that measures provided for
in Article 41 would be inadequate or have proved to be inadequate,
it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security.
Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United
Nations.13
_______________
Secretary of State Webster in his diplomatic note in the 1842 Caroline Case.
According to Professor Higgins, under customary international law, preemptive self-
defense may be resorted to when the necessity is “instant, overwhelming, and leav[es]
no choice of means, and no moment for deliberation.”
12 See Higgins, id., at pp. 245-248 (1994). See Keynote address by Jacques
Forster, Vice President of the International Committee of the Red Cross, presented at
the Ninth Annual Seminar on International Humanitarian Law for Diplomats
accredited to the United Nations, Geneva, 8-9 March 2000
<https://www.icrc.org/eng/resources/documents/misc/57jqjk.htm> (visited January
11, 2016): “The use of force by the international community should come within the
scope of the United Nations Charter. International humanitarian law cannot be
invoked to justify armed intervention because it has nothing to do with the right of
States to use force. Its role is strictly limited to setting limits to armed force
irrespective of the legitimacy of its use.” See also United Nations Security Council
Resolution 1674 (2006) on the concept of Responsibility to Protect
<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1674(2006)> (visited
January 11, 2016).
13 Charter of United Nations, Chapter VII, Art. 42
<http://www.un.org/en/sections/charter/chapter7.shtml> (visited January 11, 2016).
We fall within this exception when we participate in the enforcement of the
resolutions of the Security Council.14
14 See Charter of United Nations, Chapter VII, Art. 44
<http://www.un.org/en/documents/charter/chapter7.shtml> (visited January

640


Generally, the President’s discretion is plenary in matters falling
within executive functions. He is the chief executive,15 having the
power of control over all executive departments, bureaus, and
offices.16 Further, “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 [and] [i]n many ways,
the President is the chief architect of the nation’s foreign policy.”17
The President is also the Commander-in-Chief of all armed
forces of the Philippines.18 He has the power to “call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion .
. . suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law”19 subject to the
conditions and requisites under the provision.
However, the President’s discretion to allow our participation in
the use of force — whether by committing our own military assets
and personnel or by allowing our territory to be used as waypoints,
refueling or staging areas — is also constrained by the Constitution.
In this sense, the power of the President as Commander-in-Chief and
head of state is limited by the sovereign through judicially
determinable constitutional parameters.
_______________
11, 2016). See also Enforcement action through regional arrangements under
Articles 52(1) and 53(1) of the United Nations Charter.
<http://www.un.org/en/sections/un-charter/chapter-viii/index.html> (visited January
11, 2016).
15 Const., Art. VII, Sec. 1.
17 Supra note 2 at p. 663; p. 494.
19 Id.

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III

With respect to the use of or threat to use force, we can discern a
gradation of interrelations of the legislative and executive powers to
ensure that we pursue “an independent foreign policy” in the context
of our history.
Article VI, Section 23 of the Constitution covers declarations of a
state of war. It is vested solely in Congress, thus:

Section 23. (1) The Congress, by a vote of two-thirds
of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of
war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment
thereof.

Informed by our history and to ensure that the independence of
our foreign policy is not compromised by the presence of foreign
bases, troops, or facilities, the Constitution now provides for treaty
recognition, Senate concurrence, and public ratification when
required by Congress through Article XVIII, Section 25, thus:

Section 25. After the expiration in 1991 of the
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

642


The prohibition in Article XVIII, Section 25 relates only to
international agreements involving foreign military bases, troops, or
facilities. It does not prohibit the President from entering into other
types of agreements that relate to other aspects of his powers as
Commander-in-Chief.
In BAYAN:

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.
....
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.20
(Emphasis supplied)

“Foreign military bases, troops, and facilities” should not be read
together but separately. Again, in BAYAN:
_______________
20 Supra note 2 at pp. 651-655; pp. 482-486.

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VOL. 779, JANUARY 12, 2016 643


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 hermeneutics 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 or 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, 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 Commissoner Bernas.

644


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
requirements 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.”
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.
conditions are sufficiently met, viz.: (a) it must be

645
VOL. 779, JANUARY 12, 2016 645


under a treaty; (b) the treaty must be duly concurred in by
the Senate and, when so required by congress, ratified by a
referendum; and (c) recognized as a treaty by the other
contracting state.21 (Citations omitted)

The ponencia, among others, interprets “shall not be allowed” as
being limited to the “initial entry” of bases, troops, or facilities.22
Subsequent acts are treated as no longer being subject to Article
XVIII, Section 25 and are, therefore, only limited by other
constitutional provisions and relevant laws.23
This interpretation is specious and ahistorical.
There is nothing in Article XVIII, Section 25 that defines the
extent and scope of the presence of foreign military bases, troops, or
facilities, thereby justifying a distinction between their initial entry
and subsequent activities. Its very structure shows that Article
XVIII, Section 25 is not a mere gateway for the entry of foreign
troops or facilities into the Philippines for them to carry out any
activity later on.
The provision contains measures designed to protect our country
in the broader scheme of international relations. Military presence
shapes both foreign policy and political relations. War — or the
threat thereof through the position of troops, basing, and provision
of military facilities — is an extension of politic, thus:
The use of military force is a means to a higher end — the
political object. War is a tool that policy uses to achieve its
objectives and, as such, has a measure of rational utility. So,
the purpose for which the use of force is intended will be the
major determinant of the course and character of a war. As
Clausewitz explains, war “is controlled by its political object,”
which will set its course,
_______________
21 Id., at pp. 653-655; pp. 484-486.

23 Id., at p. 354.

646


prescribe the scale of means and effort which is required,
and makes its influence felt throughout down to the smallest
operational detail.24

With respect to the entry and presence of foreign military bases,
troops, and facilities, Article XVIII, Section 25 of the 1987
Constitution enables government to politically negotiate with other
states from a position of equality. The authority is not exclusively
granted to the President. It is shared with the Congress. The Senate
participates because no foreign base, troop, or facility may enter
unless it is authorized by a treaty.
There is more evidence in the text of the provision of a sovereign
intent to require conscious, deliberate, and public discussion
regarding these issues.
The provision gives Congress, consisting of the Senate and the
House of Representatives, the option to require that the treaty
become effective only when approved by a majority of the people in
a referendum. Furthermore, there is the additional requirement that
the authority will be absent if the other state does not treat the same
instrument that allows their bases, troops, and facilities to enter our
territory as a treaty.
The provision ensures equality by requiring a higher level of
public scrutiny. Unlike in the past when we bargained with the
United States from a position of weakness, the Constitution opens
the legislative forum so that we use the freedoms that we have won
since 1946 to ensure a fair agreement. Legislative hearings make the
agreements more publicly legible. They allow more criticism to be
addressed. Public forums clarify to the United States and other
foreign military powers interested in the Philippines the full extent
of interest and
_______________
24 Thomas Waldman, Politics and War: Clausewitz’s Paradoxical Equation,

AUTUMN 2 (2010)
<http://strategicstudiesinstitute.army.mil/pubs/parameters/Articles/201Oautumn/Waldman.pdf>
(visited January 11, 2016).

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VOL. 779, JANUARY 12, 2016 647


the various standpoints of our different constituents. As a
mechanism of public participation, it also assures our treaty partners
of the durability of the various obligations in these types of security
arrangements.
The EDCA was negotiated in private between representatives of
the President and the United States. The complete text of the
negotiations was presented to the public in time for the visit of the
President of the United States. During its presentation, the
President’s representatives took the position that no further public
discussion would be held that might affect the terms of the EDCA.
The President presented the EDCA as a final product withdrawn
from Senate or Congressional input. The President curtailed even the
possibility of full public participation through a Congressional
Resolution calling for a referendum on this matter.
The Separate Opinion of former Chief Justice Puno in BAYAN
provides a picture of how the Constitutional Commission recognized
the lopsided relationship of the United States and the Philippines
despite the 1951 Mutual Defense Treaty and the 1947 Agreement
Between the United States of America and the Republic of the
Philippines Concerning Military Bases (1947 Military Bases
Agreement):
To determine compliance of the VFA with the
requirements of Sec. 25, Art. XVIII of the Constitution, it is
necessary to ascertain the intent of the framers of the
Constitution as well as the will of the Filipino people who
ratified the fundamental law. This exercise would inevitably
take us back to the period in our history when U.S. military
presence was entrenched in Philippine territory with the
establishment and operation of U.S. Military Bases in
several parts of the archipelago under the 1947 R.P.-U.S.
Military Bases Agreement. As articulated by Constitutional
Commissioner Blas F. Ople in the 1986 Constitutional
Commission deliberations on this provision, the 1947 RP-US
Military Bases Agreement was ratified by the Philippine
Senate, but not by the

648


United States Senate. In the eyes of Philippine law,
therefore, the Military Bases Agreement was a treaty, but by
the laws of the United States, it was a mere executive
agreement. This asymmetry in the legal treatment of the
Military Bases Agreement by the two countries was believed
to be a slur to our sovereignty. Thus, in the debate among the
Constitutional Commissioners, the unmistakable intention of
the commission emerged that this anomalous asymmetry must
never be repeated. To correct this historical aberration, Sec.
25, Art. XVIII of the Constitution requires that the treaty
allowing the presence of foreign military bases, troops, and
facilities should also be “recognized as a treaty by the other
contacting party.” In plain language, recognition of the
United States as the other contracting party of the VFA should
be by the US President with the advice and consent of the US
Senate.
The following exchanges manifest this intention:
“MR. OPLE. Will either of the two gentlemen yield
to just one question for clarification? Is there anything
in this formulation, whether that of Commissioner
Bernas or of Commissioner Romulo, that will prevent
the Philippine government from abrogating the existing
bases agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I
had taken the position from the beginning — and this is
embodied in a resolution filed by Commissioners Natividad,
Maambong and Regalado — that it is very important that the
government of the Republic of the Philippines be in a position
to terminate or abrogate the bases agreement as one of the
options . . . . we have acknowledged starting at the committee
level that the bases agreement was ratified by our Senate; it is
a treaty under Philippine law. But as far as the Americans are
con-

649
VOL. 779, JANUARY 12, 2016 649


cerned, the Senate never took cognizance of this and
therefore, it is an executive agreement. That creates a wholly
unacceptable asymmetry between the two countries.
Therefore, in my opinion, the right step to take, if the
government of our country will deem it in the national interest
to terminate this agreement or even to renegotiate it, is that we
must begin with a clean slate; we should not be burdened by
the flaws of the 1947 Military Bases Agreement. . .
MR. ROMULO. Madam President, I think the two phrases
in the Bernas formulation take care of Commissioner Ople’s
concerns.
The first says ‘EXCEPT UNDER THE TERMS OF
A TREATY.’ That means that if it is to be renegotiated,
it must be under the terms of a new treaty. The second is
the concluding phrase which says: ‘AND
RECOGNIZED AS A TREATY BY THE OTHER
CONTRACTING STATE.’
....
MR. SUAREZ. Is the proposal prospective and not
retroactive in character?
FR. BERNAS. Yes, it is prospective because it does
not touch the validity of the present agreement.
However, if a decision should be arrived at that the
present agreement is invalid, then even prior to 1991,
this becomes operative right away.
MR. SUAREZ. In other words, we do not impress
the previous agreements with a valid character, neither
do we say that they are null and void ab initio as
claimed by many of us here.
FR. BERNAS. The position I hold is that it is not the
function of this Commission to pass judgment on the
validity or invalidity of the subsisting agreement.

650


MR. SUAREZ . . . the proposal requires recognition
of this treaty by the other contracting nation. How
would that recognition be expressed by that other
contracting nation? That is in accordance with their
constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated,
since this certainly would refer only to the United
States, because it is only the United States that would
have the possibility of being allowed to have treaties
here, then we would have to require that the Senate of
the United States concur in the treaty because under
American constitutional law, there must be concurrence
on the part of the Senate of the United States to
conclude treaties.
....
FR. BERNAS. When I say that the other contracting
state must recognize it as a treaty, by that I mean it must
perform all the acts required for the agreement to reach
the status of a treaty under their jurisdiction.”25
(Emphasis supplied)

By allowing the entry of United States military personnel, their
deployment into undefined missions here and abroad, and their use
of military assets staged from our territory against their present and
future enemies based on a general provision in the VFA, the
majority now undermines the measures built into our present
Constitution to allow the Senate, Congress and our People to
participate in the shaping of foreign policy. The EDCA may be an
agreement that “deep-
_______________
25 J. Puno, Dissenting Opinion in Bayan (Bagong Alyansang Makabayan) v.

Zamora, supra note 2 at pp. 672-675; pp. 503-505.

651
VOL. 779, JANUARY 12, 2016 651


ens defense cooperation”26 between the Philippines and the
United States. However, like the 1947 Military Bases Agreement, it
is the agreement more than any other that will extensively shape our
foreign policy.

IV

Article VII, Section 21 of the Constitution complements Article
XVIII, Section 25 as it provides for the requisite Senate
concurrence, thus:

Section 21. 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 provision covers both “treaty and international agreement.”
Treaties are traditionally understood as international agreements
entered into between states or by states with international
organizations with international legal personalities.27 The deliberate
inclusion of the term “international agreement” is the subject of a
number of academic discussions pertaining to foreign relations and
international law. Its addition cannot be mere surplus. Certainly,
Senate concurrence should cover more than treaties.
That the President may enter into international agreements as
chief architect of the Philippines’ foreign policy has long been
acknowledged.28 However, whether an international
_______________
26 Agreement between the Government of the Philippines and the Government of
the United States of America on Enhanced Defense Cooperation (2014), Art. 1, Sec.
1.
27 See Vienna Convention on the Law of Treaties (1969), Art. 2(1)(a) and Vienna
Convention on the Law of Treaties between States and International Organizations or
between International Organizations, Art. 2(1)(a) (1986).
28 Supra note 2; and Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil.
303; 462 SCRA 622 (2005) [Per J. Puno, En Banc].

652


agreement is to be regarded as a treaty or as an executive
agreement depends on the subject matter covered by and the
temporal nature of the agreement.29 Commissioner of Customs v.
Eastern Sea Trading30 differentiated international agreements that
require Senate concurrence from those that do not:

International agreements involving political issues or
changes of national policy and those involving international
arrangements of a permanent character usually take the form
of treaties. 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.31 (Emphasis in the original)

Indeed, the distinction made in Commissioner of Customs in
terms of international agreements must be clarified depending on
whether it is viewed from an international law or domestic law
perspective. Dean Merlin M. Magallona summarizes the differences
between the two perspectives:

From the standpoint of Philippine constitutional law, a
treaty is to be distinguished from an executive agreement, as
the Supreme Court has done in Commissioner of Customs v.
Eastern Sea Trading where it declares that “the concurrence
of [the Senate] is required by our fundamental law in the
making of ‘treaties’ . . . which are, however, distinct and
different from ‘executive agreements,’ which may be validly
entered into without such concurrence.”
_______________
See also Exec. Order No. 292 (1987), Book IV, Title I, Sec. 3(1) and 20.
29 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333; 3 SCRA 351
(1961) [Per J. Concepcion, En Banc].
30 Id.
31 Id., at p. 338; p. 356.

653
VOL. 779, JANUARY 12, 2016 653


Thus, the distinction rests on the application of Senate
concurrence as a constitutional requirement.
However, from the standpoint of international law, no such
distinction is drawn. Note that for purposes of the Vienna
Convention on the Law of Treaties, in Article 2(1)(a) the term
“treaty” is understood as “an international agreement
concluded between States in written form and governed by
international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular
designation.” . . . The Philippines is a party to the Convention
which is already in force. In the use of the term “treaty,”
Article 2(1)(a) of the Vienna Convention on the Law of
Treaties between States and International Organizations,
which is not yet in force, the designation or appellation of the
agreement also carries no legal significance. Provided the
instruments possess the elements of an agreement under
international law, they are to be taken equally as “treaty”
without regard to the descriptive names by which they are
designated, such as “protocol,” “charter,” “covenant,”
“exchange of notes,” “modus vivendi,” “convention,” or
“executive agreement.”32 (Emphasis supplied, citations
omitted)

Under Article 2(2)33 of the Vienna Convention on the Law of
Treaties, in relation to Article 2(1)(a),34 the designation and
_______________
32 Magallona, Merlin M., A Primer in International Law, pp. 62-64 (1997).
33 Article 2. USE OF TERMS
....
2. 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 any State.
34 1. For the purposes of the present Convention:
(a) “Treaty” means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.

654


treatment given to an international agreement is subject to the
treatment given by the internal law of the state party.35 Paragraph 2
of Article 2 specifically safeguards the states’ usage of the terms
“treaty” and “international agreement” under their internal laws.36
Within the context of our Constitution, the requirement for
Senate concurrence in Article VII, Section 21 of the Constitution
connotes a special field of state policies, interests, and issues relating
to foreign relations that the Executive cannot validly cover in an
executive agreement:

As stated above, an executive agreement is outside the
coverage of Article VII, Section 21 of the Constitution and
hence not subject to Senate concurrence. However, the
demarcation line between a treaty and an executive agreement
as to the subject matter or content of their coverage is ill-
defined. The courts have not provided reliable guidelines as to
the scope of executive-agreement authority in relation to
treaty-making power.
If executive-agreement authority is un-contained, and if
what may be the proper subject matter of a treaty may also be
included within the scope of executive-agreement power, the
constitutional requirement of Senate concurrence could be
rendered meaningless. The requirement could be circumvented
by an expedient resort to executive agreement.
The definite provision for Senate concurrence in the
Constitution indomitably signifies that there must be a regime
of national interests, policies and problems which the
Executive branch of the government cannot deal with in terms
of foreign relations except through treaties concurred in by the
Senate under Article VII, Section 21 of

_______________
35 See Magallona, Merlin M., The Supreme Court and International Law:
Problems and Approaches in Philippine Practice, in International Relations Pamphlet
Series No. 12, 16-17 (2010).
36 See 1 Cortien, Olivier and Klein, Pierre, The Vienna Conventions on the Law
of Treaties: A Commentary, pp. 34 and 55 (2011).
655
VOL. 779, JANUARY 12, 2016 655


the Constitution. The problem is how to define that regime,
i.e., that which is outside the scope of executive-agreement
power of the President and which exclusively belongs to
treaty-making as subject to Senate concurrence.37 (Emphasis
supplied)

Thus, Article VII, Section 21 may cover some but not all types of
executive agreements. Definitely, the determination of its coverage
does not depend on the nomenclature assigned by the President.
Executive agreements are international agreements that pertain
to mere adjustments of detail that carry out well-entrenched national
policies and traditions in line with the functions of the Executive. It
includes enforcement of existing and valid treaties where the
provisions are clear. It involves arrangements that are of a temporary
nature. More importantly, it does not amend existing treaties,
statutes, or the Constitution.
In contrast, international agreements that are considered treaties
under our Constitution involve key political issues or changes of
national policy. These agreements are of a permanent character. It
requires concurrence by at least two-thirds of all the members of the
Senate.
Even if we assume that the EDCA’s nomenclature as an
“executive agreement” is correct, it is still the type of international
agreement that needs to be submitted to the Senate for concurrence.
It involves a key political issue that substantially alters or reshapes
our national and foreign policy.
Fundamentally however, the President’s classification of the
EDCA as a mere “executive agreement” is invalid. Article XVIII,
Section 25 requires that the presence of foreign troops, bases, and
facilities must be covered by an internationally binding agreement in
the form of a treaty concurred in by the Senate.
_______________
37 Magallona, supra note 32 at pp. 66-67.

656


V

The Solicitor General, on behalf of government, proposes that we
should view the EDCA merely as an implementation of both the
Mutual Defense Treaty and the VFA. In his view, since both the
Mutual Defense Treaty and the VFA have been submitted to the
Senate and concurred in validly under the governing constitutional
provisions at that time, there is no longer any need to have an
implementing agreement similarly submitted for Senate
concurrence.
The Chief Justice, writing for the majority of this court, agrees
with the position of the Solicitor General.
I disagree.
The proposal of the Solicitor General cannot be accepted for the
following reasons: (1) the Mutual Defense Treaty, entered into in
1951 and ratified in 1952, cannot trump the constitutional provision
Article XVIII, Section 25; (2) even the VFA, which could have been
also argued as implementing the Mutual Defense Treaty, was
presented to the Senate for ratification; (3) the EDCA contains
significant and material obligations not contemplated by the VFA;
and (4) assuming arguendo that the EDCA only provides the details
for the full implementation of the VFA, Article XVIII, Section 25
still requires that it at least be submitted to the Senate for
concurrence, given the history and context of the constitutional
provision.

VI

The 1951 Mutual Defense Treaty cannot be the treaty
contemplated in Article XVIII, Section 25. Its implementation
through an executive agreement, which allows foreign military
bases, troops, and facilities, is not enough. If the Mutual Defense
Treaty is the basis for the EDCA as a mere executive agreement,
Article XVIII, Section 25 of the Constitution will make no sense. An
absurd interpretation of the Constitution is no valid interpretation.

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The Mutual Defense Treaty was entered into by representatives
of the Philippines and the United States on August 30, 1951 and
concurred in by the Philippine Senate on May 12, 1952. The treaty
acknowledges that this is in the context of our obligations under the
Charter of the United Nations. Thus, Article I of the Mutual Defense
Treaty provides:

The Parties undertake, as set forth in the Charter of the
United Nations, to settle any international disputes in which
they may be involved by peaceful means in such a manner
that international peace and security and justice are not
endangered and to refrain in their international relations from
the threat or use of force in any manner inconsistent with the
purposes of the United Nations.

Further, the treaty expresses the desire of the parties to “maintain
and develop their individual and collective capacity to resist armed
attack.” Thus, in Article III of the Treaty:

collective capacity to resist armed attack.

While these provisions in the 1951 Mutual Defense Treaty could
reasonably be interpreted to include activities done jointly by the
Philippines and the United States, nothing in International Law nor
in the Constitution can be reasonably read as referring to this treaty
for the authorization for “foreign military bases, troops, or facilities”
after the ratification of the 1987 Constitution.
Again, the constitutional provision reads:

military bases, troops or facilities

658


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.
(Emphasis supplied)

There is a time stamp to the obligation under this provision. The
prohibition against “foreign military bases, troops, or facilities,”
unless covered by treaty or allowed through a referendum, becomes
effective “after the expiration in 1991 of the Agreement . . .
concerning Military Bases.” The treaty about to expire refers to the
1947 Military Bases Agreement as amended. This was still in effect
at the time of the drafting, submission, and ratification of the 1987
Constitution.
The constitutional timeline is unequivocal.
The 1951 Mutual Defense Treaty was in effect at the time of the
ratification of the Constitution in 1987. It was also in effect even
after the expiration of the Military Bases Agreement in 1991. We
could reasonably assume that those who drafted and ratified the
1987 Constitution were aware of this legal situation and of the broad
terms of the 1951 treaty yet did not expressly mention the 1951
Mutual Defense Treaty in Article XVIII, Section 25. We can
conclude, with sturdy and unassailable logic, that the 1951 treaty is
not the treaty contemplated in Article XVIII, Section 25.
Besides, the Executive also viewed the VFA as an
implementation of the 1951 Mutual Defense Treaty. Yet, it was still
submitted to the Senate for concurrence.
Parenthetically, Article 62 of the Vienna Convention on the Law
of Treaties38 provides for the principle of “rebus sic stan-

_______________
38 Article 62. Fundamental Change of Circumstances

1. A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not foreseen by
the par-

659
VOL. 779, JANUARY 12, 2016 659

tibus,” in that a fundamental change of circumstances may be a
ground to terminate or withdraw from a treaty.39 Dean Merlin M.
Magallona is of the view that there has been a fundamental change
in circumstances that allows the Philippines to terminate the 1951
Mutual Defense Treaty.40 Although we should acknowledge this
suggestion during the oral arguments by petitioners, we do not need
to go into such an issue and at this time to be able to resolve the
controversies in this case. We await a case that will provide a clearer
factual backdrop properly pleaded by the parties.
_______________
ties, may not be invoked as a ground for terminating or withdrawing from the
treaty unless:
a. The existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
b. The effect of the change is radically to transform the extent of obligations still
to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
a. If the treaty establishes a boundary; or
b. If the fundamental change is the result of a breach by the party invoking it either
of an obligation under the treaty or of any other international obligation owed to any
other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.
Vienna Convention of the Law of Treaties (1969)
<https://treaties.un.org/doc/Publication/UNTSNolume%201155/volume-1155-I-
18232-English.pdf> (visited January 11, 2016).
39 Vienna Convention of the Law of Treaties, Art. 62 (1969)
<https://treaties.un.org/doc/Publication/UNTSN/Volume%201155/volume-1155-I-
18232-English.pdf> (visited January 11, 2016).
40 Magallona, Merlin M., A Critical Review of the EDCA, p. 29 (2014)
(Unpublished), annexed to petitioners’ Memorandum.

660


In addition, the Mutual Defense Treaty is not the treaty
contemplated by Article XVIII, Section 25 on account of its subject
matter. In paragraph 5 of its Preamble, the Mutual Defense Treaty
articulates the parties’ desire “to strengthen their present efforts to
collective defense for the preservation of peace and security pending
the development of a more comprehensive system of regional
security in the Pacific Area.” Article II further clarifies the treaty’s
purpose:
Article II
collective capacity to resist armed attack. (Emphasis
supplied)

Clearly, none of its provisions provide specifically for the
presence of a base, troops, or facilities that will put it within the
ambit of Article XVIII, Section 25. Its main aim is to provide
support against state enemies effectively and efficiently. Thus, for
instance, foreign military bases were covered in the 1947 Military
Bases Agreement.
The VFA cannot also be said to be the treaty required in Article
XVIII, Section 25. This is because the United States, as the other
contracting party, has never treated it as such under its own domestic
laws. The VFA has the same status as that of the 1947 Military
Bases Agreement in that it is merely an executive agreement on the
part of United States:
As articulated by Constitutional Commissioner Blas F. Ople in

the 1986 Constitutional Commission deliberations on this
provision, the 1947 RP-US Military Bases Agreement was
ratified by the Philippine Senate, but not by the United States
Senate. In the eyes of Philippine law, therefore, the Military
Bases Agreement was a treaty, but by the laws of the United
States, it was a mere executive agreement.

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VOL. 779, JANUARY 12, 2016 661


This asymmetry in the legal treatment of the Military
Bases Agreement by the two countries was believed to be a
slur to our sovereignty.41 (Emphasis supplied)

In Nicolas, Associate Justice Antonio T. Carpio himself
underscored the non-treaty status of the Visiting Forces Agreement
in light of Medellin v. Texas42 in his Separate Opinion, thus:
Under Medellin, the VFA is indisputably not enforceable

as domestic federal law in the United States. On the other
hand, since the Philippine Senate ratified the VFA, the VFA
constitutes domestic law in the Philippines. This unequal legal
status of the VFA violates Section 25, Article XVIII of the
Philippine Constitution, which specifically requires that a
treaty involving the presence of foreign troops in the
Philippines must be equally binding on the Philippines and on
the other contracting State.
In short, the Philippine Constitution bars the efficacy of
such a treaty that is enforceable as domestic law only in the
Philippines but unenforceable as domestic law in the other
contracting State. The Philippines is a sovereign and
independent State. It is no longer a colony of the United
States. This Court should not countenance an unequal treaty
that is not only contrary to the express mandate of the
Philippine Constitution, but also an affront to the sovereignty,
dignity and independence of the Philippine State.
There is no dispute that Section 25, Article XVIII of the
Philippine Constitution governs the constitutionality of the
VFA. Section 25 states:
_______________
41 J. Puno, Dissenting Opinion in Bayan (Bagong Alyansang Makabayan) v.

Zamora, supra note 2 at pp. 672-673; p. 503.
42 128 S.Ct. 1346; 170 L.Ed.2d 190.

662


Agreement between the Republic of the Philippines and
the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that
purpose, and recognized as a treaty by the other
contracting State.
The clear intent of the phrase “recognized as a treaty by
the other contracting State” is to insure that the treaty has
the same legal effect on the Philippines as on the other
contracting State. This requirement is unique to agreements
involving the presence of foreign troops in the Philippines,
along with the requirement, if Congress is so minded, to hold
a national referendum for the ratification of such a treaty.
The deliberations of the Constitutional Commission reveal
the sensitivity of the framers to the “unacceptable asymmetry”
of the then existing military bases agreement between the
Philippines and the United States. The Philippine Senate had
ratified the military bases agreement but the United States
Government refused to submit the same to the U.S. Senate for
ratification. Commissioner Blas Ople explained this
“unacceptable asymmetry” in this manner:
. . . But I think we have acknowledged starting at the
committee level that the bases agreement was ratified by
our Senate; it is a treaty under Philippine law. But as
far as the Americans are concerned, the Senate
never took cognizance of this and, therefore, it is an
executive agreement. That creates a wholly
unacceptable asymmetry between the two countries.
Therefore, in my opinion, the right step

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to take, if the government of our country will deem it
in the national interest to terminate this agreement or
even to renegotiate it, is that we must begin with a clean
slate; we should not be burdened by the flaws of the
1947 Military Bases Agreement. I think that is a very
important point. I am glad to be reassured by the two
Gentlemen that there is nothing in these proposals that
will bar the Philippine government at the proper time
from exercising the option of abrogation or termination.
Eventually, the Constitutional Commission required that
any agreement involving the presence of foreign troops in the
Philippines must be “recognized as a treaty by the other
contracting State.” This means that the other contracting
State must recognize the agreement as a treaty, as
distinguished from any other agreement, and if its
constitutional processes require, submit the agreement to its
proper legislative body for ratification as a treaty. As
explained by Commissioner Father Joaquin Bernas, S.J.,
during the deliberations of the Constitutional Commission:
Third, on the last phrase “AND RECOGNIZED AS
A TREATY BY THE OTHER CONTRACTING
NATION,” we enter into a treaty and we want the
other contracting party to respect that document as
a document possessing force in the same way that we
respect it. The present situation we have is that the
bases agreement is a treaty as far as we are concerned,
but it is only an executive agreement as far as the
United States is concerned, because the treaty process
was never completed in the United States because the
agreement was not ratified by the Senate.

664


So, for these reasons, I oppose the deletion of this
section because, first of all, as I said, it does not prevent
renegotiation. Second, it respects the sovereignty of our
people and the people will be in a better position to
judge whether to accept the treaty or not, because then
they will be voting not just on an abstraction but they
will be voting after examination of the terms of the
treaty negotiated by our government. And third, the
requirement that it be recognized as a treaty by the
other contracting nation places us on the same level
as any other contracting party.
The following exchanges in the Constitutional
Commission explain further the meaning of the phrase
“recognized as a treaty by the other contracting State”:
FR. BERNAS: Let me be concrete, Madam
President, in our circumstances. Suppose they were to
have this situation where our government were to
negotiate a treaty with the United States, and then the
two executive departments in the ordinary course of
negotiation come to an agreement. As our Constitution
is taking shape now, if this is to be a treaty at all, it will
have to be submitted to our Senate for its ratification.
Suppose, therefore, that what was agreed upon between
the United States and the executive department of the
Philippines is submitted and ratified by the Senate, then
it is further submitted to the people for its ratification
and subsequently, we ask the United States: “Complete
the process by accepting it as a treaty through
ratification by your Senate as the United States
Constitution requires,” would such an arrangement
be in derogation of sovereignty?

665
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MR. NOLLEDO: Under the circumstances the
Commissioner just mentioned, Madam President, on the
basis of the provision of Section 1 that “sovereignty
resides in the Filipino people,” then we would not
consider that a derogation of our sovereignty on the
basis and expectation that there was a plebiscite.
x x x x x x x x x
FR. BERNAS: As Commissioner Romulo
indicated, since this certainly would refer only to the
United States, because it is only the United States that
would have the possibility of being allowed to have
treaties here, then we would have to require that the
Senate of the United States concur in the treaty because
under American constitutional law, there must be
concurrence on the part of the Senate of the United
States to conclude treaties.
MR. SUAREZ: Thank you for the clarification.
Under the 1935 Constitution, if I recall it correctly,
treaties and agreements entered into require an
exchange of ratification. I remember that is how it was
worded. We do not have in mind here an exchange of
ratification by the Senate of the United States and by the
Senate of the Philippines, for instance, but only an
approval or a recognition by the Senate of the United
States of that treaty.
FR. BERNAS: When I say that the other
contracting state must recognize it as a treaty, by
that I mean it must perform all the acts required for
that agreement to reach the status of a treaty under
their jurisdiction.

666


Thus, Section 25, Article XVIII of the Philippine
Constitution requires that any agreement involving the
presence of foreign troops in the Philippines must be equally
legally binding both on the Philippines and on the other
contracting State. This means the treaty must be enforceable
under Philippine domestic law as well as under the domestic
law of the other contracting State. Even Justice Adolfo S.
Azcuna, the ponente of the majority opinion, and who was
himself a member of the Constitutional Commission,
expressly admits this when he states in his ponencia:
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 where the terms and
conditions governing the presence of foreign armed
forces in our territory were binding on us but not
upon the foreign State.
An “equally binding” treaty means exactly what it says —
the treaty is enforceable as domestic law in the Philippines
and likewise enforceable as domestic law in the other
contracting State.43 (Emphasis in the original, citations
omitted)

Surprisingly, through his Concurring Opinion in this case,
Associate Justice Carpio has now abandoned his earlier views.
This court’s interpretation of a treaty under Article XVIII,
Section 25 in BAYAN, which did away with the requirement that the
agreement be recognized as a treaty by the other contracting party,
has resulted in an absurd situation of political asymmetry between
the United States and the Philip-
_______________
43 J. Carpio, Dissenting Opinion in Nicolas v. Romulo, supra note 7 at pp. 308-
312; pp. 488-491.

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VOL. 779, JANUARY 12, 2016 667


pines. A relationship where both parties are on equal footing
must be demanded, and from one state to another. The Philippine
government must be firm in requiring that the United States establish
stability in its international commitment, both by legislation and
jurisprudence.
The doctrine laid down in BAYAN, insofar as the VFA is
concerned, should now be revisited in light of new circumstances
and challenges in foreign policy and international relations.

VII

Even if we assume that the Mutual Defense Treaty and the VFA
are the treaties contemplated by Article XVIII, Section 25 of the
Constitution, this court must determine whether the EDCA is a valid
executive agreement as argued by respondents.
It is not. The EDCA modifies these two agreements.
Respondents claim that the EDCA is an executive agreement and
merely implements the Mutual Defense Treaty and VFA.44 In
arguing that the EDCA implements the Mutual Defense Treaty,
respondents state that the latter has two operative principles: (1) the
Principle of Defensive Reaction under Article IV;45 and (2) the
Principle of Defensive Preparation under Article II.46
_______________
44 Respondents’ Memorandum, pp. 15-16.

45 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.
46 ARTICLE II. In order more effectively to achieve the objective of this

668


According to respondents, “[t]he primary concern of the EDCA
is the Principle of Defensive Preparation in order to enhance both
parties’ abilities, if required, to operationalize the Principle of
Defensive Reaction.”47 The specific goals enumerated in the EDCA
demonstrate this:

56. The specific purposes of the EDCA — to “[s]upport
the Parties’ shared goal of improving interoperability of the
Parties’ forces, and for the Armed Forces of the Philippines
(‘AFP’), [to address its] short-term capabilities gaps,
promoting long-term modernization, and helping maintain and
develop additional maritime security, maritime domain
awareness, and humanitarian assistance and disaster relief
capabilities” properly fall within the MDT’s objective of
developing the defense capabilities of the Philippines and the
US. The EDCA implements the MDT by providing for a
mechanism that promotes optimal cooperation between the
US and the Philippines.48

Similarly, respondents allege that the EDCA implements the
VFA in relation to the entry of United States troops and personnel,
importation and exportation of equipment, materials, supplies, and
other property, and movement of vessels and aircraft in the
Philippines.49 Respondents rely on this court’s pronouncement in
Lim that combat-related activities are allowed under the VFA:

61. Article I of the EDCA provides that its purposes are
to support “the Parties’ shared goal of improving interop-
_______________
mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.
47 Respondents’ Memorandum, p. 15.
48 Id., at p. 16.
49 Id., citing Agreement between the Government Republic of the Philippines and
the Government of the United States of America Regarding the Treatment of United
States Armed Forces Visiting the Philippines (1998), Arts. I, VII, and VIII.

669
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erability of the Parties’ forces, and for the Armed Forces of
the Philippines (‘AFP’), [to address its] short-term capabilities
gaps, promoting long-term modernization, and helping
maintain and develop additional maritime security, maritime
domain awareness, and humanitarian assistance and disaster
relief capabilities.”
62. The Honorable Court in Lim ruled that these
activities are already covered by the VFA. Under Lim,
“maritime security, maritime domain awareness, and
humanitarian assistance and disaster relief capabilities” are
activities that are authorized to be undertaken in the
Philippines under the VFA.
63. Article II of the EDCA reiterates the definition of
“United States personnel” in the VFA which means “United
States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippines.”
64. Article III of the EDCA provides for the “Agreed
Locations” where the Philippines authorizes US to “conduct
the following activities”: “training; transit; support and related
activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels and aircraft;
temporary accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying
forces and materiel; and such other activities as the Parties
may agree.”
65. Article IV of the EDCA authorizes the prepositioning
and storing of defense equipment, supplies and materiel.
Under Article IV in relation to Article III of the EDCA, the
“prepositioning of equipment, supplies and materiel” is an
“activity” to be approved by the Philippine Government
“through bilateral security mechanisms, such as the MDB and
SEB.”
66. In sum, what the EDCA does is to enhance the
existing contractual security apparatus between the
Philippines and the US, set up through the MDT and the VFA.
It is the duty of the Honorable Court to allow this security
apparatus enough breathing space to respond to perceived,
anticipated, and actual exigencies.

670


As discussed earlier, an executive agreement merely provides for
the detailed adjustments of national policies or principles already
existing in other treaties, statutes, or the Constitution. It involves
only the enforcement of clear and specific provisions of the
Constitution, law, or treaty. It cannot amend nor invalidate an
existing statute, treaty, or provision in the Constitution. It includes
agreements that are of a temporary nature.
This is not the case with the EDCA.
The EDCA contains significant and material obligations not
contemplated by the VFA. As an executive agreement, it cannot be
given any legal effect. The EDCA substantially modifies and
amends the VFA in at least the following aspects:
First, the EDCA does not only regulate the “visits” of foreign
troops. It allows the temporary stationing on a rotational basis of
United States military personnel and their contractors on physical
locations with permanent facilities and pre-positioned military
materiel.
Second, unlike the VFA, the EDCA allows the pre-positioning of
military materiel, which can include various types of warships,
fighter planes, bombers, land and amphibious vehicles, and their
corresponding ammunition.
Third, the VFA contemplates the entry of troops for various
training exercises. The EDCA allows our territory to be used by the
United States to launch military and paramilitary operations
conducted in other states.
Fourth, the EDCA introduces new concepts not contemplated in
the VFA, namely: (a) agreed locations; (b) contractors; (c) pre-
positioning of military materiel; and (d) operational control.
Lastly, the VFA did not have provisions that may have been
construed as a restriction or modification of obligations found in
existing statutes. The EDCA contains provisions that

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may affect various statutes including, among others, (a) the
jurisdiction of courts, (b) local autonomy, and (c) taxation.

VIII

Article I(1)(b) of the EDCA authorizes United States forces
access to “Agreed Locations” in the Philippines on a rotational
basis.50 Even while the concept of “rotation” may refer to incidental
and transient presence of foreign troops and contractors, the nature
of the “Agreed Locations” is eerily similar to and, therefore,
amounts to basing agreements.
“Agreed Locations” has been defined by the EDCA in Article
II(4) as:

Facilities and areas that are provided by the Government
of the Philippines through the AFP and that United states
forces, United States contractors, and others as mutually
agreed, shall have the right to access and use pursuant to this
Agreement. Such agreed Locations may be listed in an annex
to be appended to this Agreement, and may be further
described in implementing agreements. (Emphasis supplied)

As treaties, the 1947 Military Bases Agreement and its various
amendments specified the actual location of the physical locations of
United States troops and facilities. The EDCA, however, now
delegates the identification of the location not to a select Senate
Committee or a public body but simply to our military
representatives in the Mutual Defense Board and the Security
Enhancement Board.
More importantly, the extent of access and use allowed to United
States forces and contractors under the EDCA is broad. It is set out
in Article III:
_______________
50 (b) Authorizing access to Agreed Locations in the territory of the Philippines
by United States forces on a rotational basis, as mutually determined by the Parties.

672


Article III
Agreed Locations
aircraft operated by or for United States forces may conduct
training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, arid aircraft; temporary accommodation of
supplies, and materiel; deploying forces and materiel; and
such other activities as the Parties may agree.
2. When requested, the Designated Authority of the
Philippines shall assist in facilitating transit or temporary
access by United States forces to public land and facilities
(including roads, ports, and airfields), including those owned
or controlled by local governments, and to other land and
facilities (including roads, ports, and airfields).
3. Given the mutuality of benefits, the Parties agree that the
Philippines shall make Agreed Locations available to United
States forces without rental or similar costs. United States
forces shall cover their necessary operation expenses with
respect to their activities at the Agreed Locations.
4. The Philippines hereby grants to the United States,
through bilateral security mechanisms, such as the MDB and
SEB, operational control of Agreed Locations for construction
activities and authority to undertake such activities on, and
make alterations and improvements to, Agreed Locations.
United States forces shall consult on issues regarding such
construction; alterations, and improvements on the Parties’
shared intent that the technical requirements and construction
standards of any such projects undertaken by or on behalf of
United States

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VOL. 779, JANUARY 12, 2016 673


forces should be consistent with the requirements and
standards of both Parties.
....
6. United States forces shall be responsible on the basis of
proportionate use for construction, development, operation,
and maintenance costs at Agreed Locations. Specific funding
arrangements may be fined in Implementing arrangements.
(Emphasis supplied)

Parsing the provisions carefully, we find that the Agreed
Locations may be used for:

(1) training;
(2) transit;
(3) support and related activities;
(4) refueling of aircraft;
(5) bunkering of vessels;
(6) temporary maintenance of vehicles, vessels, and aircraft;
(7) temporary accommodation of personnel;
(8) communications;
(9) pre-positioning of equipment, supplies, and materiel;
(10) deploying forces and materiel; and
(11) other activities as the parties may agree.

There is no hierarchy among these activities. In other words,
functions (2) to (11) need not be supportive only of training or
transit. Function (10), which pertains to deployment of United States
forces and materiel, can be done independently of whether there are
training exercises or whether the troops are only in transit.
The permission to do all these activities is explicit in the EDCA.
Government has already authorized and agreed that “United States
forces, United States contractors, and vehicles,

674


vessels, and aircraft operated by or for United States forces” may
conduct all these activities. Carefully breaking down this clause in
Article III(1) of the EDCA, the authorization is already granted to:
(a) “United States forces”;
(b) “United States contractors”; and
(c) “vehicles, vessels, and aircraft operated by or for United
States forces.”
United States military forces will not only be allowed to “visit”
Philippine territory to do a transient military training exercise with
their Philippine counterparts. They are also allowed to execute,
among others, the following scenarios:
One: Parts of Philippine territory may be used as staging areas
for special or regular United States military personnel for
intervention in conflict areas in the Southeast Asian region. This can
be in the form of landing rights given to their fighter jets and stealth
bombers or way stations for SEALS or other special units entering
foreign territory in states not officially at war with the Philippines.
Two: Parts of Philippine territory may be used to supplement
overt communication systems of the United States forces. For
instance, cyberwarfare targeting a state hostile to the United States
can be launched from any of the Agreed Locations to pursue their
interests even if this will not augur well to Philippine foreign policy.
Three: Parts of Philippine territory may be used to plan, deploy,
and supply covert operations done by United States contractors such
as Blackwater and other mercenary groups that have been used by
the United States in other parts of the world. The EDCA covers
these types of operations within and outside Philippine territory.
Again, the consequences to Philippine foreign policy in cases where
targets are found in neighboring countries would be immeasurable.

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The Visiting Forces Agreement does not cover these sample
activities. Nor does it cover United States contractors.

IX

Blanket authority over Agreed Locations is granted under Article
VI, Section 3 of the EDCA. The United States forces are given a
broad range of powers with regard to the Agreed Locations that are
“necessary for their operational control or defense.”51 This authority
extends to the protection of United States forces and contractors. In
addition, the United States is merely obligated to coordinate with
Philippine authorities the measures they will take in case they deem
it necessary to take action.

In contrast, the Mutual Defense Treaty is different. It is specific
to the maintenance and development of the Philippines and the
United States’ individual and collective capacity to resist armed
attack. The parties’ goal under the Mutual Defense Treaty is to
enhance collective defense mechanisms for the preservation of peace
and security in the Pacific area.52
While certain activities such as “joint RP-US military exercises
for the purpose of developing the capability to resist an armed attack
fall . . . under the provisions of the RP-US Mutual Defense
Treaty,”53 the alleged principles of Defensive Reaction and
Defensive Preparation do not license the ceding
_______________
the United States of America on Enhanced Defense Cooperation (2014), Art. VI(3).
United States forces are authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or defense, including taking
appropriate measures to protect United States forces and United States contractors.
The United States should coordinate such measures with appropriate authorities of the
Philippines.
52 Mutual Defense Treaty between the Republic of the Philippines and the United
States of America (1951), Preamble, par. 4.

676


of authority and control over specific portions of the Philippines
to foreign military forces without compliance with the Constitutional
requirements.54 Such grant of authority and control over Agreed
Locations to foreign military forces involves a drastic change in
national policy and cannot be done in a mere executive agreement.
Moreover, nothing in the VFA provides for the use of Agreed
Locations to United States forces or personnel, considering that the
VFA focuses on the visitation of United States armed forces to the
Philippines in relation to joint military exercises:

Preamble
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[.]
(Emphasis supplied)
_______________
54 See Const., Art. XVIII, Sec. 25.

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In Lim, the Terms of Reference55 of the “Balikatan 02-1”
_______________
55 The Terms of Reference provides:

I. POLICY LEVEL
1. The Exercise shall be Consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions of the
RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United
Nations resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established.
Temporary structures such as those for troop billeting, classroom instruction and
messing may be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces
operate independently during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective forces under the overall
authority of the Exercise Co-Directors. RP and US participants shall comply with
operational instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and 3,800 RP
Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be conducted
in Malagutay and the Zamboanga area. Related activities in Cebu will be for support
of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be
deployed with AFP field commanders. The US teams shall remain at the Battalion
Headquarters and, when approved, Company Tactical headquarters where they can
observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their
right of self-defense.

678


joint military exercises is covered by the VFA. Hence, under
_______________
9. These terms of Reference are for purposes of this Exercise only and do not
create additional legal obligations between the US Government and the Republic of
the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising
and training of RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air
traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start of
the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of
the Filipinos and the provisions of the VFA. The briefing shall also promote the full
cooperation on the part of the RP and US participants for the successful conduct of
the Exercise.
b. RP and US participating forces may share, in accordance with their respective
laws and regulations, in the use of their resources, equipment and other assets. They
will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and US
assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise
Directorate m Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by
RP and US Forces in accordance with their respective laws and regulations, and in
consultation with community and local government officials.

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the VFA, activities such as joint exercises, which “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,”56 are authorized. However, Lim specifically
provided for the context of the conduct of the combat-related
activities under the VFA: President George W. Bush’s international
antiterrorism campaign as a result of the events on September 11,
2001.57
Meanwhile, the EDCA unduly expands the scope of authorized
activities to Agreed Locations with only a vague reference to the
VFA:

Article I
Purpose and Scope

1. This Agreement deepens defense cooperation between
the Parties and maintains and develops their individual and
collective capacities, in furtherance of Article II of the MDT,
which states that the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual
capacity to resist armed attack, and within the context of VFA.
This includes:
(a) Supporting the Parties’ shared goal of improving
interoperability of the Parties’ forces, and for the Armed
Forces of the Philippines (“AFP”), addressing short-term
capabilities gaps, promoting long-term modernization, and
helping maintain and develop additional maritime security,
maritime domain awareness, and humanitarian assistance and
disaster relief capabilities; and
(b) Authorizing access to Agreed Locations in the
territory of the Philippines by United States forces on a
rotational basis, as mutually determined by the Parties.
_______________

57 Id., at p. 564; p. 745.

680


2. In furtherance of the MDT, the Parties mutually agree
that this Agreement provides the principal provisions and
necessary authorizations with respect to Agreed Locations.
3. The Parties agree that the United States may
undertake the following types of activities in the territory of
the Philippines in relation to its access to and use of Agreed
Locations: security cooperation exercises; joint and combined
training activities; humanitarian assistance and disaster relief
activities; and such other activities as may be agreed upon by
the Parties. (Emphasis supplied)

The VFA was ratified in 1998. However, in 2011, the Obama
Administration announced its plan of intensifying its presence in the
Asia-Pacific region.58 The United States hinges this pivot on
maritime peace and security in the region in relation to a stable
international economic order.59 Hence, their Department of Defense
enumerates three maritime objectives: “to safeguard the freedom of
the seas; deter conflict and coercion; and promote adherence to
international law and standards.”60
To achieve these objectives, the United States conducts
operations, exercises, and training with several countries it
_______________
58 Manyin, Mark E., Pivot to the Pacific? The Obama Administration’s
“Rebalancing” Toward Asia (2012) <https://www.fas.org/sgp/crs/natsec/R42448.pdf>
(visited January 11, 2016). See Odom, Jonathan G., What Does a “Pivot” or
“Rebalance” Look Like? Elements of the US Strategic Turn Towards Security in the
Asia-Pacific Region and Its Waters, 14 APLPJ 2-8 (2013); O’Rourke, Ronald,
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China:
Issues for Congress (2015) <https://www.fas.org/sgp/crs/row/R42784.pdf> (visited
January 11, 2016).
59 United States Department of Defense, The Asia-Pacific Maritime Security
Strategy: Achieving US National Security Objectives in a Changing Environment, pp.
1-2 <http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-
P_Maritime_SecuritY_Strategy-08142015-1300-FINALFORMAT.PDF (visited
January 11, 2016).
60 Id., at p. 1.

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considers allies in the region.61 Nevertheless, key to the United
States’ military strategy is the enhancement of its forward presence
in the Asia-Pacific:

Force Posture

One of the most important efforts the Department of
Defense has underway is to enhance our forward presence by
bringing our finest capabilities, assets, and people to the Asia-
Pacific region. The U.S. military presence has underwritten
security and stability in the Asia-Pacific region for more than
60 years. Our forward presence not only serves to deter
regional conflict and coercion, it also allows us to respond
rapidly to maritime crises. Working in concert with regional
allies and partners enables us to respond more effectively to
these crises.
The United States maintains 368,000 military personnel in
the Asia-Pacific region, of which approximately 97,000 are
west of the International Date Line. Over the next five years,
the US. Navy will increase the number of ships assigned to
Pacific Fleet outside of US territory by approximately 30
percent, greatly improving our ability to maintain a more
regular and persistent maritime presence in the Pacific. And
by 2020, 60 percent of naval and overseas air assets will be
homeported in the Pacific region. The Department will also
enhance Marine Corps presence by developing a more
distributed and sustainable laydown model.
Enhancing our forward presence also involves using
existing assets in new ways, across the entire region, with an
emphasis on operational flexibility and maximizing the value
of US assets despite the tyranny of distance. This is why the
Department is working to develop a more distributed,
resilient, and sustainable posture. As part of this effort, the
United States will maintain its presence in Northeast Asia,
while enhancing defense posture across the Western Pacific,
Southeast Asia, and the Indian Ocean.
_______________
61 Id., at pp. 23-24.

682

....
In Southeast Asia, the Department is honing an already
robust bilateral exercise program with our treaty ally, the
Republic of the Philippines, to assist it with establishing a
minimum credible defense more effectively. We are conducting
more than 400 planned events with the Philippines in 2015,
including our premier joint exercise, Balikatan, which this
year was the largest and most sophisticated ever. During this
year’s Balikatan, more than 15,000 US, Philippine, and
Australian military personnel exercised operations involving a
territorial defense scenario in the Sulu Sea, with personnel
from Japan observing.62 (Emphasis supplied)

These changes in United States policy are reflected in the EDCA
and not in the VFA. Thus, there is a substantial change of objectives.
If, indeed, the goal is only to enhance mutual defense capabilities
under the Mutual Defense Treaty through conduct of joint military
exercises authorized by the VFA, then it behooves this court to ask
the purpose of providing control and authority over Agreed
Locations here in the Philippines when it is outside the coverage of
both the Mutual Defense Treaty and the VFA. Through a vague
reference to the VFA, respondents fail to establish how the EDCA
merely implements the VFA. They cannot claim that the provisions
of the EDCA merely make use of the authority previously granted
under the VFA. What is clear is that the Agreed Locations become a
platform for the United States to execute its new military strategy
and strengthen its presence in the Asia-Pacific, which is clearly
outside the coverage of the VFA.
In addition, the EDCA does not merely implement the Mutual
Defense Treaty and VFA when it provides for the entry of United
States private contractors into the Philippines.
_______________
62 Id., at pp. 22-23.

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In the EDCA, United States contractors are defined as follows:

3. “United States contractors” means companies and
firms, and their employees, under contract or subcontract to or
on behalf of the United States Department of Defense. United
States contractors are not included as part of the definition of
United States personnel in this Agreement, including within
the context of the VFA.63 (Emphasis supplied)

This definition admits that the VFA does not provide for the entry
of contractors into Philippine territory. The activities that United
States contractors are allowed to undertake are specific to United
States forces or personnel only as can be gleaned from this court’s
decisions in BAYAN, Lim, and Nicolas. Hence, the extensive
authority granted to United States contractors cannot be sourced
from the VFA:

Article II
DEFINITIONS
....
4. “Agreed Locations” means facilities and areas that are
provided by the Government of the Philippines through the
AFP and that United States forces, United States contractors,
and others as mutually agreed, shall have the right to access
and use pursuant to this Agreement. Such Agreed Locations
may be listed in an annex to be appended to this Agreement,
and may be further described in implementing arrangements.
....
_______________
the United States of America on Enhanced Defense Cooperation (2014), Art. II(3).

684


Article III
AGREED LOCATIONS
aircraft operated by or for United States forces may conduct
training; transit; support and related activities; refuel big of
aircraft; bunkering of vessels; temporary maintenance of
supplies, and materiel; deploying forces and materiel; and
such other activities as the Parties may agree.
....
Article IV
EQUIPMENT, SUPPLIES, AND MATERIEL
....
4. United States forces and United States contractors
shall have unimpeded access to Agreed Locations for all
matters relating to the prepositioning and storage of defense
equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of
such equipment, supplies and materiel.
5. The Parties share an intent that United States
contractors may carry out such matters in accordance with,
and to the extent permissible under, United States laws,
regulations, and policies. (Emphasis supplied)

Respondents, through the Office of the Solicitor General, insist
that the EDCA is an implementing agreement of the Mutual Defense
Treaty and the VFA. They do so based on the conclusion that all
treaties or agreements entered into by the Philippines pursuant to
certain principles contained in the Mutual Defense Treaty may be
considered subservient to these treaties. This will substantially
weaken the spirit of

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Article XVIII, Section 25 and the sovereign desire to achieve an
independent foreign policy.

X

The EDCA authorizes the use of Philippine territory as bases of
operations. Although not as permanent as those set up pursuant to
the 1947 Military Bases Agreement, they are still foreign military
bases within the contemplation of Article XVIII, Section 25 of the
Constitution.
The development and use of these Agreed Locations are clearly
within the discretion of the United States. The retention of
ownership by the Philippines under Article V(1)64 of the EDCA
does not temper the wide latitude accorded to the other contracting
party. At best, the United States’ only obligation is to consult and
coordinate with our government. Under the EDCA, the consent of
the Philippine government does not extend to the operations and
activities to be conducted by the United States forces and
contractors. Operational control remains solely with the United
States government. The agreement did not create a distinction
between domestic and international operations. Ownership of the
Agreed Locations under the EDCA is a diluted concept, with the
Philippine government devoid of any authority to set the parameters
for what may and may not be conducted within the confines of these
areas.
What constitutes a “base” in the context of United States-
Philippine relations may be explored by revisiting the 1947 Military
Bases Agreement.65 In one of the agreement’s pream-
_______________
64 “The Philippines shall retain ownership of and title to Agreed Locations.”
65 A copy is contained in Treaties and Other International Agreements of the
United States of America 1776-1949, as compiled under the direction of Charles I.
Bevans, LL.B., Assistant Legal Adviser, Department of State
<http://kahimyang.info/kauswagan/Downloads.xhtml?sortorder=znoblair> (visited
November 5, 2015).

686


bular clauses, the United States and Philippine governments
agreed that in line with cooperation and common defense, the
United States shall be granted the use of certain lands of the public
domain in the Philippines, free of rent.66 In line with the promotion
of mutual security and territorial defense, the extent of rights of the
contracting parties in the use of these lands was described in Article
III of the agreement:

Article III
Description of Rights

1. It is mutually agreed that the United States shall have
the rights, power and authority within the bases which are
necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the
rights, power and authority within the limits of territorial
waters and air space adjacent to, or in the vicinity of, the
bases which are necessary to provide access to them, or
appropriate for their control.
2. Such rights, power and authority shall include, inter
alia, the right, power and authority:
a) to construct (including dredging and filling), operate,
maintain, utilize, occupy, garrison and control the bases;
b) to improve and deepen the harbors, channels,
entrances and anchorages, and to construct or maintain
necessary roads and bridges affording access to the bases;
c) to control (including the right to prohibit) insofar as
may be required for the efficient operation and safety of
_______________
66 WHEREAS, the Governments of the United States of America and of the
Republic of the Philippines are desirous of cooperating in the common defense of
their two countries through arrangements consonant with the procedures and
objectives of the United Nations, and particularly through a grant to the United States
of America by the Republic of the Philippines in the exercise of its title and
sovereignty, of the use, free of rent, in furtherance of the mutual interest of both
countries, of certain lands of the public domain.

687
VOL. 779, JANUARY 12, 2016 687


the bases, and within the limits of military necessity,
anchorages, moorings, landings, takeoffs, movements and
operation of ships and waterborne craft, aircraft and other
vehicles on water, in the air or on land comprising or in the
vicinity of the bases;
d) the right to acquire, as may be agreed between the two
Governments, such rights of way, and to construct thereon, as
may be required for military purposes, wire and radio
communications facilities, including sub-marine and
subterranean cables, pipe lines and spur tracks from railroads
to bases, and the right, as may be agreed upon between the
two Governments to construct the necessary facilities;
e) to construct, install, maintain, and employ on any base
any type of facilities, weapons, substance, device, vessel or
vehicle on or under the ground, in the air or on or under the
water that may be requisite or appropriate, including
meteorological systems, aerial and water navigation lights,
radio and radar apparatus and electronic devices, of any
desired power, type of emission and frequency.
3. In the exercise of the above mentioned rights, power
and authority, the United States agrees that the powers granted
to it will not be used unreasonably or, unless required by
military necessity determined by the two Governments, so as
to interfere with the necessary rights of navigation, aviation,
communication, or land travel within the territories of the
Philippines. In the practical application outside the bases of
the rights, power and authority granted in this Article there
shall be, as the occasion requires, consultation between the
two Governments. (Emphasis supplied)

The bases contemplated by the 1947 Military Bases Agreement
contain the elements of (a) absolute control of space; (b) the
presence of a foreign command; and (c) having a purpose of a
military nature. The agreement also relegates the role of the
Philippine government to a mere “consultant” in cases of
applications falling outside the terms provided in Article III.

688


The EDCA contains similar elements.
However, the EDCA has an open-ended duration. Despite having
an initial term of 10 years, Article XII(4) specifically provides for
the automatic continuation of the agreement’s effectivity until a
party communicates its intent to terminate.67
The purpose of the Agreed Locations is also open-ended. At best,
its definition and description of rights provide that the areas shall be
for the use of United States forces and contractors. However, short
of referring to Agreed Locations as bases, the EDCA enumerates
activities that tend to be military in nature, such as bunkering of
vessels, pre-positioning of equipment, supplies, and materiel, and
deploying forces and materiel.68 The United States is also allowed to
undertake the construction of permanent facilities,69 as well as to use
utilities and its own telecommunications systems.70
_______________
67 4. This Agreement shall have an initial term of ten years, and thereafter, it
shall continue in force automatically unless terminated by either Party by giving one
year’s written notice through diplomatic channels of its intention to terminate this
Agreement.
the United States of America on Enhanced Defense Cooperation (2014), Art. III(1).
the United States of America on Enhanced Defense Cooperation (2014), Art. V(4)
provides: All buildings, non-relocatable structures, and assemblies affixed to the land,
in the Agreed Locations, including ones altered or improved by United States forces,
remain the property of the Philippines. Permanent buildings constructed by United
States forces become the property of the Philippines, once constructed, but shall be
used by United States forces until no longer required by United States forces.
the United States of America on Enhanced Defense Cooperation (2014), Art. VII
provides for the use of utilities and communication systems:

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Most significant is the Philippine government’s grant to the
United States government of operational control over the Agreed
Locations:71

Article VI
Security

....
3. United States forces are authorized to exercise all
rights and authorities within Agreed Locations that are
necessary for their operational control or defense, including
taking appropriate measures to protect United States forces
and United States contractors. The United States should
coordinate such measures with appropriate authorities of the
Philippines.
_______________
1. The Philippines hereby grants to United States forces and United States
contractors the use of water, electricity, and other public utilities on terms and
conditions, including rates or charges, no less favorable than those available to the
AFP or the Government of the Philippines in like circumstances, less charges for
taxes and similar fees, which will be for the account of the Philippine Government.
United States forces’ costs shall be equal to their pro rata share of the use of such
utilities.
2. The Parties recognize that it may be necessary for United States forces to use
the radio spectrum. The Philippines authorizes the United States to operate its own
telecommunication systems (as telecommunication is defined in the 1992 Constitution
and Convention of the International Telecommunication Union [“ITU”]). This shall
include the right to utilize such means and services as required to ensure the full
ability to operate telecommunication systems, and the right to use all necessary radio
spectrum allocated for this purpose. Consistent with the 1992 Constitution and
Convention of the ITU, United States forces shall not interfere with frequencies in use
by local operators. Use of the radio spectrum shall be free of cost to the United States.
the United States of America on Enhanced Defense Cooperation (2014), Art. III(4).

690


4. The Parties shall take all reasonable measures to ensure the
protection, safety, and security of United States property from
seizure by or conversion to the use of any party other than the
United States, without the prior written consent of the United States.
(Citation omitted)
The United States Department of Defense Dictionary of Military
and Associated Terms72 defines “operational control” as:

[O]perational control — The authority to perform those
functions of command over subordinate forces involving
organizing and employing commands and forces, assigning
tasks, designating objectives, and giving authoritative
direction necessary to accomplish the mission. Also called
OPCON.

Similar to the 1947 Military Bases Agreement, the role of the
Philippine government has been reduced to that of a consultant,
except that the EDCA avoided the use of this label.
In some respects, too, the EDCA is similar to the Treaty of
Friendship, Cooperation and Security between the Government of
the Republic of the Philippines and the Government of the United
States of America, which was rejected by the
_______________
72 November 8, 2010, As Amended Through June 15, 2015

<http://fas.org/irp/doddir/dod/jpl_02.pdf> (visited November 5, 2015):
1. Scope
The Joint Publication 1-02, Department of Defense Dictionary of Military and
Associated Terms sets forth standard US military and associated terminology to
encompass the joint activity of the Armed Forces of the United States. These military
and associated terms, together with their definitions, constitute approved Department
of Defense (DOD) terminology for general use by all DOD components.
2. Purpose
This publication supplements standard English-language dictionaries and
standardizes military and associated terminology to improve communication and
mutual understanding within DOD, with other federal agencies, and among the
United States and its allies.

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VOL. 779, JANUARY 12, 2016 691


Philippine Senate in 1991. This rejected treaty73 defines
installations as:

“Installations” on the base authorized for use by the United
States forces are buildings and structures to include non-
removable buildings, structures, and equipment therein owned
by the Government of the Philippines, grounds, land or sea
areas specifically delineated for the purpose. “Non-removable
buildings and structures” refer to buildings, structures, and
other improvements permanently affixed to the ground, and
such

_______________
73 This treaty contains a Supplementary Agreement on Installations and Military

operating Procedures (Supplementary Agreement Number Two), which provides:
ARTICLE 1
PURPOSES OF THE UNITED STATES MILITARY PRESENCE IN THE
PHILIPPINES
The Government of the Republic of the Philippines authorizes the Government of
the United States of America to station United States forces in the Philippines, and in
connection therewith to use certain installations in Subic Naval Base, which is a
Philippine military base, designated training areas and air spaces, and such other areas
as may be mutually agreed, for the following purposes and under the terms and
conditions stipulated in this Agreement:
a. training of United States forces and joint training of United States forces with
Philippine forces;
b. servicing, provisioning, maintenance, support and accommodation of United
States forces;
c. logistics supply and maintenance points for support of United States forces;
d. transit point for United States forces and United States military personnel;
e. projecting or operating United States forces from the installations under
conditions of peace or war, provided that military combat operations of United States
forces directly launched from installations on the base authorized for United States
use shall be subject to prior approval of the Government of the Philippines;
f. such other purposes, consistent with this Agreement, as may be mutually
agreed.

692


equipment, including essential utility systems such as
energy and water production and distribution systems and
heating and air conditioning systems that are an integral part
of such buildings and structures, which are essential to the
habitability and general use of such improvements and are
permanently attached to or integrated into the property.

The treaty, which was not concurred in by the Senate, sets the
parameters for defense cooperation and the use of installations in
several provisions:
Article IV
Use of Installations by the US Forces

1. Subject to the provisions of this Agreement, the
Government of the Philippines authorizes the Government of
the United States to continue to use for military purposes
certain installations in Subic Naval Base.
2. The installations shall be used solely for the purposes
authorized under this Agreement, and such other purposes as
may be mutually agreed upon.
3. Ownership of all existing non-removable buildings
and structures in Subic Naval Base is with the Government of
the Philippines which has title over them. The Government of
the Philippines shall also become owner of all non-removable
buildings and structures that shall henceforth be constructed in
Subic Naval Base immediately after their completion, with
title thereto being vested with the Government of the
Philippines.
4. The Government of the United States shall not
remove, relocate, demolish, reconstruct or undertake major
external alterations of non-removable buildings and structures
in Subic Naval Base without the approval of the Philippine
commander. The United States shall also not construct any
removable or non-removable buildings or structures without
the approval of the Philippine Commander. The Philippine
Commander will grant such

693
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approval for reasons of safety as determined jointly by the
Philippine and United States Commanders.
....
8. The Government of the United States shall bear costs
of operations and maintenance of the installations authorized
for use in accordance with Annex B to this Agreement.
9. The Government of the Philippines will, upon request,
assist the United States authorities in obtaining water,
electricity, telephone and other utilities. Such utilities shall be
provided to the Government of the United States, United
States contractors and United States personnel for activities
under this Agreement at the rates, terms and conditions not
less favorable than those available to the military forces of the
Philippine government, and free of duties, taxes, and other
charges.
....
Article VII
Defense Cooperation and Use of Philippine Installations
1. Recognizing that cooperation in the areas of defense
and security serves their mutual interest and contributes to the
maintenance of peace, and reaffirming their existing defense
relationship, the two Governments shall pursue their common
concerns in defense and security.
2. The two Governments recognize the need to readjust
their defense and security relationship to respond to existing
realities in the national, regional, and global environment. To
this end, the Government of the Republic of the Philippines
allows the Government of the United States to use
installations in Subic Naval Base for a specified period, under
specific conditions set forth in Supplementary Agreement
Number Two: Agreement on Installations and Military
Operating Procedures and Supplementary Agreement Number
Three: Agreement on the Status of Forces.

694


3. Both governments shall also cooperate in the
maintenance, upgrading and modernization of the defense and
security capabilities of the armed forces of both countries,
particularly of those of the Republic of the Philippines. In
accordance with the common desire of the Parties to improve
their defense relationship through balanced, mutual
contributions to their common defense, the Government of the
United States shall, subject to the constitutional procedures
and to United States Congressional action, provide security
assistance to the Government of the Philippines to assist in the
modernization and enhancement of the capabilities of the
Armed Forces of the Philippines and to support appropriate
economic programs.

The 1987 Constitution does not proscribe the establishment of
permanent or temporary foreign military bases. However, the
Constitution now requires that decisions on the presence of foreign
military bases, troops, and facilities be not the sole prerogative of
the President and certainly not the prerogative at all of the Secretary
of Defense or Philippine Representatives to the Mutual Defense
Board and the Security Enhancement Board.
Absent any transmission by the President to the Senate, the
EDCA remains a formal official memorial of the results of intensive
negotiations only. It has no legal effect whatsoever, and any
implementation at this stage will be grave abuse of discretion.

XI

Thus, the EDCA amends the VFA. Since the VFA is a treaty, the
EDCA cannot be implemented.
Treaties, being of the same status as that of municipal law, may
be modified either by another statute or by the Constitu-

695
VOL. 779, JANUARY 12, 2016 695


tion itself.74 Treaties such as the VFA cannot be amended by an

XII

Petitioners invoke this court’s power of judicial review to
determine whether respondents from the Executive Branch exceeded
their powers and prerogatives in entering into this agreement on
behalf of the Philippines “in utter disregard of the national
sovereignty, territorial integrity and national interest provision of the
Constitution, Section 25 of the Transitory provisions of the
Constitution, Section 21 and other provisions of the Philippine
Constitution and various Philippine laws and principles of
international law.”75
Petitioners submit that all requisites for this court to exercise its
power of judicial review are present.76 Petitioners in G.R. No.
212444 discussed that they had legal standing and they raised
justiciable issues. Petitioners in G.R. No. 212426 similarly discussed
their legal standing, the existence of an actual case or controversy
involving a conflict of legal rights, and the ripeness of the case for
adjudication.77
Respondents counter that only the Senate may sue on matters
involving constitutional prerogatives, and none of the petitioners are
Senators.78 They submit that “[t]he silence and active non-
participation of the Senate in the current proceedings is an
affirmation of the President’s characterization of the EDCA as an
executive agreement,”79 and “there is no such
_______________
74 See Gonzales v. Hechanova, 118 Phil. 1065; 9 SCRA 230 (1963) [Per J.
Concepcion, En Banc] and Ichong v. Hernandez, 101 Phil. 1155 (1957) [Per J.
Labrador, En Banc].
75 Memorandum for Petitioners Bayan, et al., pp. 3-4.
76 Id., at pp. 19-25; Memorandum for Petitioners Saguisag, pp. 11-17;
Memorandum for Petitioners-in-Intervention KMU, pp. 5-6.
77 Memorandum for Petitioners Saguisag, pp. 11-17.
78 Memorandum for Respondents, pp. 4-5.
79 Id., at p. 6.

696


actual conflict between the Executive and the Senate.”80 They
add that the overuse of the transcendental importance exception “has
cheapened the value of the Constitution’s safeguards to
adjudication.”81
Article VIII, Section 1 of the Constitution now clarifies the extent
of this court’s power of judicial review “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.”82
The 1936 landmark case of Angara v. Electoral Commission83
explained the fundamental principle of separation of powers among
government branches and this court’s duty to mediate in the
allocation of their constitutional boundaries:

In times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers
between the several departments and among the integral or
constituent units thereof.
. . . The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended
it would be inconceivable if the Constitution had not provided
for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the
limitation and restric-
_______________
80 Id., at p. 7.
81 Id., at p. 8.
82 Const., Art. VIII, Sec. 1.
83 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

697
VOL. 779, JANUARY 12, 2016 697


tions embodied in our Constitution are real as they should
be in any living constitution. . . .
The Constitution is a definition of the powers of
government. . . The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all
that is involved in what is termed “judicial supremacy” which
properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota
presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through
their representatives in the executive and legislative
departments of the governments of the government.84

Jurisprudence abounds on these four requisites for the exercise of
judicial review. It must be shown that an actual case or controversy
exists; that petitioners have legal standing; that they raised the
constitutionality question at the earliest
_______________
84 Id., at pp. 157-159.

698


possible opportunity; and that the constitutionality question is the
very lis mota of the case.85
This court can only exercise its power of judicial review after
determining the presence of all requisites, such as an actual case or
controversy, in consideration of the doctrine of separation of powers.
It cannot issue advisory opinions nor overstep into the review of the
policy behind actions by the two other coequal branches of
government. It cannot assume jurisdiction over political questions.

XIII

The requirement for an actual case or controversy acknowledges
that courts should refrain from rendering advisory opinions
concerning actions by the other branches of government.86
Courts resolve issues resulting from adversarial positions based
on existing facts established by the parties who seek the court’s
application or interpretation of a legal provision that affects them.87
It is not for this court to trigger or reenact the political debates that
resulted in the enactment of laws after considering broadly
construed factual circumstances to allow a general application by the
Executive.88
The requisite actual case or controversy means the existence of
“a conflict of legal rights, an assertion of opposite
_______________
85 See Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., 460 Phil. 830, 892; 415 SCRA 44, 133 (2003) [Per J.
Carpio-Morales, En Banc].
86 Lozano v. Nograles, 607 Phil. 334, 340; 589 SCRA 354, 358 (2009) [Per CJ.
Puno, En Banc]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr.
v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 535
[Per J. Abad, En Banc].
87 Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015, 747
SCRA 1 [Per J. Leonen, En Banc].
88 Id.

699
VOL. 779, JANUARY 12, 2016 699


legal claims susceptible of judicial resolution; the case must not
be moot or academic or based on extralegal or other similar
considerations not cognizable by a court of justice.”89 It means the
pleadings show “an active antagonistic assertion of a legal right, on
the one hand, and a denial thereof on the other; that is, it must
concern a real and not a merely theoretical question or issue.”90
Thus, it is not this court’s duty to “rule on abstract and
speculative issues barren of actual facts.”91 Ruling on abstract cases
presents the danger of foreclosing litigation between real parties, and
rendering advisory opinions presents the danger of a court that
substitutes its own imagination and predicts facts, acts, or events that
may or may not happen.92 Facts based on judicial proof must frame
the court’s discre-
_______________
89 Information Technology Foundation of the Philippines v. COMELEC, 499 Phil.

281, 304; 460 SCRA 291, 312 (2005) [Per J. Panganiban, En Banc], citing Republic
v. Tan, G.R. No. 145255, March 30, 2004, 426 SCRA 485 [Per J. Carpio-Morales,
Third Division]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr.
v. Secretary of Justice, supra note 86 at p. 534; and In the Matter of Save the Supreme
Court Judicial Independence and Fiscal Autonomy Movement v. Abolition of
Judiciary Development Fund (JDF) and Reduction of Fiscal Autonomy, UDK-15143,
January 21, 2015, 746 SCRA 352 [Per J. Leonen, En Banc].
90 Information Technology Foundation of the Philippines v. COMELEC, id., at p.
305; pp. 312-313, citing De Lumen v. Republic, 50 OG No. 2, February 14, 1952, 578.
See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of
Justice, id., at pp. 534-535; and In the Matter of Save the Supreme Court Judicial
Independence and Fiscal Autonomy Movement v. Abolition of Judiciary Development
Fund (JDF) and Reduction of Fiscal Autonomy, id.
91 J. Leonen, Dissenting Opinion in Imbong v. Ochoa, Jr., G.R. Nos. 204819,
April 8, 2014, 721 SCRA 146, 731 [Per J. Mendoza, En Banc], citing Angara v.
Electoral Commission, supra note 83 at p. 158; and Guingona, Jr. v. Court of
Appeals, 354 Phil. 415, 429; 292 SCRA 402, 413-414 (1998) [Per J. Panganiban,
First Division].
92 Id.

700


tion,93 as “[r]igor in determining whether controversies brought
before us are justiciable avoids the counter majoritarian difficulties
attributed to the judiciary.”94
Abstract cases include those where another political department
has yet to act. In other words, a case not ripe for adjudication is not
yet a concrete case.
Republic of the Philippines v. Roque95 clarified the concept of
having an actual case or controversy and the aspect of ripeness:
Pertinently, a justiciable controversy refers to an existing

case or controversy that is appropriate or ripe for judicial
determination, not one that is conjectural or merely
anticipatory. Corollary thereto, by “ripening seeds” it is meant,
not that sufficient accrued facts may be dispensed with, but
that a dispute may be tried at its inception before it has
accumulated the asperity, distemper, animosity, passion, and
violence of a full blown battle that looms ahead. The concept
describes a state of facts indicating imminent and inevitable
litigation provided that the issue is not settled and stabilized
by tranquilizing declaration.
A perusal of private respondents’ petition for declaratory
relief would show that they have failed to demonstrate how
they are left to sustain or are in immediate danger to sustain
some direct injury as a result of the enforcement of the
assailed provisions of RA 9372. Not far removed from the
factual milieu in the Southern Hemisphere cases, private
respondents only assert general interests as citizens, and
taxpayers and infractions which the government could
prospectively commit if the enforcement of the said law
would remain untrammelled. As their petition would disclose,
private respondents’ fear of prosecution was solely based on
remarks of certain
_______________
93 Id.
94 Id., at p. 721.
95 G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J. Perlas-Bernabe,
En Banc].

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government officials which were addressed to the general
public. They, however failed to show how these remarks
tended towards any prosecutorial or governmental action
geared towards the implementation of RA 9372 against them.
In other words, there was no particular, real or imminent threat
to any of them. As held in Southern Hemisphere:
Without any justiciable controversy, the petitions
have become pleas for declaratory relief, over which the
Court has no original jurisdiction. Then again,
declaratory actions characterized by “double
contingency” where both the activity the petitioners
intend to undertake and the anticipated reaction to it of a
public official are merely theorized, lie beyond judicial
review for lack of ripeness.
The possibility of abuse in the implementation of
RA 9372 does not avail to take the present petitions out
of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 93 72 since the exercise
of any power granted by law may be abused.
Allegations of abuse must be anchored on real events
before courts may step in to settle actual controversies
involving rights which are legally demandable and
enforceable.96 (Emphasis supplied, citations omitted)

Our courts generally treat the issue of ripeness for adjudication in
terms of actual injury to the plaintiff.97 The question is whether “the
act being challenged has had a direct adverse
_______________
96 Id., at pp. 284-285. See also J. Leonen, Dissenting and Concurring Opinion in
Disini, Jr. v. Secretary of Justice, supra note 86 at pp. 536-537.
97 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and
Management, 686 Phil. 357; 670 SCRA 373 (2012) [Per J. Mendoza, En Banc].

702


effect on the individual challenging it.”98 The Petitions are
premature. Since the Senate has yet to act and the President has yet
to transmit to the Senate, there is no right that has been violated as
yet.

XIV

There is still a political act that must happen before the
agreement can become valid and binding. The Senate can still
address the constitutional challenges with respect to the contents of
the EDCA. Thus, the challenges to the substantive content of the
EDCA are, at present, in the nature of political questions.
However, the nature of the EDCA, whether it is a treaty or
merely an executive agreement, is ripe for adjudication.
In 1957, Tañada v. Cuenca99 explained the concept of political
questions as referring to issues that depend not on the legality of a
measure but on the wisdom behind it:
As already adverted to, the objection to our jurisdiction

hinges on the question whether the issue before us is political
or not. In this connection, Willoughby lucidly states:
“Elsewhere in this treatise the well-known and well-
established principle is considered that it is not within
the province of the courts to pass judgment upon the
policy of legislative or executive action. Where,
therefore, discretionary powers are granted by the
Constitution or by statute, the manner in which those
powers are exercised is not subject to judicial review.
The courts, therefore,
_______________
98 Id., at p. 369; p. 383, citing Lozano v. Nograles, supra note 86, in turn citing
Guingona, Jr. v. Court of Appeals, supra note 91 at pp. 427-428; pp. 414-415.
99 103 Phil. 1051 (1957) [Per J. Concepcion, En Banc].

703
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concern themselves only with the question as to the
existence and extent of these discretionary powers.
As distinguished from the judicial, the legislative
and executive departments are spoken of as the political
departments of government because in very many cases
their action is necessarily dictated by considerations of
public or political policy. These considerations of
public or political policy of course will not permit the
legislature to violate constitutional provisions, or the
executive to exercise authority not granted him by the
Constitution or by statute, but, within these limits, they
do permit the departments, separately or together, to
recognize that a certain set of facts exists or that a given
status exists, and these determinations, together with the
consequences that flow therefrom, may not be traversed
in the courts.”
To the same effect is the language used in Corpus Juris
Secundum, from which we quote:
“It is well-settled doctrine that political questions are
not within the province of the judiciary, except to the
extent that power to deal with such questions has been
conferred upon the courts by express constitutional or
statutory provisions.
It is not easy, however, to define the phrase ‘political
question,’ nor to determine what matters fall within its
scope. It is frequently used to designate all questions
that the outside the scope of the judicial questions,
which under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the
legislative or executive branch of the government.”

704


Thus, it has been repeatedly held that the question whether
certain amendments to the Constitution are invalid for
noncompliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts.
In the case of In re McConaughy, the nature of political
question was considered carefully. The Court said:
“At the threshold of the case we are met with the
assertion that the questions involved are political, and
not judicial. If this is correct, the court has no
jurisdiction as the certificate of the state canvassing
board would then be final, regardless of the actual vote
upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided
contrary to the view contended for by the Attorney
General that it would seem, to be finally settled.
....
. . . What is generally meant, when it is said that a
question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their
primary political capacity, or that it has been
specifically delegated to some other department or
particular officer of the government, with
discretionary power to act. Thus the Legislature may in
its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the
people. The courts have no judicial control over such
matters, not merely because they involve political
question, but because they are matters which the people
have by the Constitution delegated to the Legislature.
The Governor may exercise the powers delegated-to
him, free from judicial control, so long as he observes
the laws and acts within the limits of the power
conferred. His discre-

705
VOL. 779, JANUARY 12, 2016 705


tionary acts cannot be controllable, not primarily
because they are of a political nature, but because the
Constitution and laws have placed the particular matter
under his control. But every officer under a
constitutional government must act according to law
and subject him to the restraining and controlling
power of the people, acting through the courts, as well
as through the executive or the Legislature. One
department is just as representative as the other, and the
judiciary is the department which is charged with the
special duty of determining the limitations which the
law places upon all official action. The recognition of
this principle, unknown except in Great Britain and
America, is necessary, to ‘the end that the government
may be one of laws and not men’ — words which
Webster said were the greatest contained in any written
constitutional document.”
In short, the term “political question” connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus
Juris Secundum (supra), it refers to “those questions which,
under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature
or executive branch of the Government.” It is concerned with
issues dependent upon the wisdom, not legality, of a
particular measure.100 (Emphasis supplied, citations omitted)

Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.101 involved the second impeachment
Complaint filed against former Chief Justice Hilario Davide before
the House of Representatives and raised
_______________
100 Id., at pp. 1065-1067.

101 Supra note 85.

706


the issue of whether this raised a political question. It traced the
evolution of jurisprudence on the political question doctrine and the
effect of this court’s expanded power of judicial review under the
present Constitution on this doctrine:

As pointed out by amicus curiae former dean Pacifico
Agabin of the UP College of Law, this Court has in fact in a
number of cases taken jurisdiction over questions which are
not truly political following the effectivity of the present
Constitution.
In Marcos v. Manglapus, this Court, speaking through
Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political
question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous
constitutions, would have normally left to the political
departments to decide. . . .
In Bengzon v. Senate Blue Ribbon Committee, through
Justice Teodoro Padilla, this Court declared:
The “allocation of constitutional boundaries” is a
task that this Court must perform under the
Constitution. Moreover, as held in a recent case, (t)he
political question doctrine neither interposes an obstacle
to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has
been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although
said provision by no means does away with the
applicability of the principle in appropriate cases.
And in Daza v. Singson, speaking through Justice Isagani
Cruz, this Court ruled:
In the case now before us, the jurisdictional
objection becomes even less tenable and decisive. The
reason is that, even if we

707
VOL. 779, JANUARY 12, 2016 707


were to assume that the issue presented before us
was political in nature, we would still not be precluded
from resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases,
even the political question. . . .
....
In our jurisdiction, the determination of a truly political
question from a nonjusticiable political question lies in the
answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the
government properly acted within such limits[.]102 (Emphasis
supplied)

In Diocese of Bacolod v. COMELEC,103 this court held that the
political question doctrine never precludes this court’s exercise of its
power of judicial review when the act of a constitutional body
infringes upon a fundamental individual or collective right.104
However, this will only be true if there is no other constitutional
body to whom the discretion to make inquiry is preliminarily
granted by the sovereign.
Ruling on the challenge to the content of the EDCA will preclude
and interfere with any future action on the part of the Senate as it
inquires into and deliberates as to whether it should give its
concurrence to the agreement or whether it should advise the
President to reopen negotiations to amend some of its provisions. It
is the Senate, through Article VII, Section 21 in relation to Article
XVIII, Section 25, that was given the discretion to make this initial
inquiry exclusive of
_______________
102 Id., at pp. 910-912; pp. 149-151. See also Diocese of Bacolod v. COMELEC,
supra note 87.
103 Diocese of Bacolod v. COMELEC, id.
104 Id.

708


all other constitutional bodies, including this court. A policy of
deference and respect for the allocation of such power by the
sovereign to a legislative chamber requires that we refrain from
making clear and categorical rulings on the constitutional challenges
to the content of the EDCA.

XV

It is true that we have, on certain occasions, substantially
overridden the requirements of justiciability when there is an
imminent threat to the violation of constitutional rights. In Garcia v.
Drilon,105 I stated that:

I am aware of our precedents where this Court has waived
questions relating to the justiciability of the constitutional
issues raised when they have “transcendental importance” to
the public. In my view, this accommodates our power to
promulgate guidance “concerning the protection and
enforcement of constitutional rights.” We choose to rule
squarely on the constitutional issues in a petition wanting all
or some of the technical requisites to meet out general
doctrines on justiciability but raising clear conditions showing
imminent threat to fundamental rights. The imminence and
clarity of the threat to fundamental constitutional rights
outweigh the necessity for prudence. In a sense, our
exceptional doctrine relating to constitutional issues of
“transcendental importance” prevents courts from the
paralysis of procedural niceties when clearly faced with the
need for substantial protection.106 (Emphasis supplied,
citations omitted)
There is, however, no need to invoke these exceptions. The

imminence of the implementation of the EDCA and, therefore,
_______________
105 J. Leonen, Concurring Opinion in Garcia v. Drilon, G.R. No. 179267, June
25, 2013, 699 SCRA 352 [Per J. Perlas-Bernabe, En Banc].
106 Id., at p. 493.

709
VOL. 779, JANUARY 12, 2016 709


the clarity of the impending threat to constitutional rights do not
appear cogent if we declare that the EDCA, without Senate
concurrence, is not yet valid and binding as a treaty or fully
complying with the requirements of Article XVIII, Section 25.

XVI

The proposed disposition of this case does not in any way
discount the deployment of the expertise of the Executive as it
conducts foreign policy. Nor should we arrogate executive discretion
by compelling the President to transmit the agreement to the Senate
for concurrence.107
Nevertheless, the judiciary has the duty to ensure that the acts of
all branches of government comply with the fundamental nature of
the Constitution.108 While the EDCA is a formal and official
memorial of the results of negotiations between the Philippines and
the United States, it is not yet effective until the Senate concurs or
there is compliance with Congressional action to submit the
agreement to a national referendum in accordance with Article
XVIII, Section 25 of the Constitution.
It is, thus, now up to the President. Should he desire to continue
the policy embedded in the EDCA, with deliberate dispatch he can
certainly transmit the agreement to the Senate for the latter to initiate
the process to concur with the agreement. After all, on these matters,
the sovereign, speaking through the Constitution, has assumed that
the exercise of wisdom is not within the sole domain of the
President. Wisdom, in allowing foreign military bases, troops, or
facilities, is likewise within the province of nationally elected
Senators of the Republic.
_______________
107 Pimentel, Jr. v. Office of the Executive Secretary, supra note 28.
108 Const., Art. VIII, Secs. 1 and 5(2).

710


On these matters, the Constitution rightly assumes that no one
person — because of the exigencies and their consequences — has a
monopoly of wisdom.
In my view, the same security concerns that moved the President
with haste to ratify the EDCA signed by his Secretary of Defense will
be the same security concerns — and more — that will move the
Senate to consider the agreement with dispatch. There are matters of
national consequence where the views of an elected President can be
enriched by the views of an elected Senate. Certainly, the
participation of the public through these mechanisms is as critical
as the foreign policy directions that the EDCA frames.
By abbreviating the constitutional process, this court makes itself
vulnerable to a reasonable impression that we do not have the
courage to enforce every word, phrase, and punctuation in the
Constitution promulgated by our People. We will stand weak, as an
institution and by implication as a state, in the community of
nations. In clear unequivocal words, the basic instrument through
which we exist requires that we interpret its words to make real an
independent foreign policy. It requires measures be fully publicly
discussed before any foreign resource capable of making war with
our neighbors and at the command of a foreign sovereign — foreign
military bases, troops and facilities — becomes effective.
Instead, the majority succumbed to a narrative of dependence to a
superpower.
Our collective memories are perilously short. Our sense of
history is wanting.
The Americans did not recognize the Declaration of
Independence of 1898, which was made possible by the blood of our
ancestors. They ignored their agreements with the Filipino
revolutionaries when they entered Intramuros and staged the
surrender of the Spanish colonizers to them. They ignored our
politicians when they negotiated the Treaty of Paris. Not a single
Filipino was there — not even as an ob-

711
VOL. 779, JANUARY 12, 2016 711


server. They triggered armed conflict with the Filipino
revolutionaries. The schools they put up attempted to block out the
inhumanity and barbarism in the conflict that followed. Only a few
remember the massacres of Samar, of Bud Dajo, and of other places
in our country. In the memory of many Filipinos today, these
brutalities have been practically erased.
Filipino veterans of World War II who fought gallantly with the
Americans, now gray and ailing, still await equal treatment with
United States war veterans. Filipina comfort women of that war still
seek just treatment and receive no succor from the ally with and for
whom they bled and suffered.
The 1951 Mutual Defense Treaty and the Visiting Forces
Agreement was in effect when the Chinese invaded certain features
within our Exclusive Economic Zone in the West Philippine Sea.
The Americans did not come to our aid. The President of the United
States visited and, on the occasion of that visit, our own President
announced the completion of the EDCA. No clear, unequivocal, and
binding commitment was given with respect to the applicability of
the Mutual Defense Treaty to the entirety of our valid legal claims in
the West Philippine Sea. The commitment of the United States
remains ambiguous. The United States’ statement is that it will not
interfere in those types of differences we have with China, among
others.
The inequality of the Mutual Defense Treaty is best presented by
the image of a commissioned but rusting and dilapidated warship
beached in a shoal in the West Philippine Sea. This ship is manned
by a handful of gallant heroic marines, and by the provisions of the
Mutual Defense Treaty, an attack on this ship — as a public vessel
— is what we are relying upon to trigger mutual defense with the
United States.
We remain a permanent ally of the United States. For decades,
we relied on them for the training of our troops and the provision of
military materiel. For decades, we hosted their

712


bases. Yet, our armed forces remain woefully equipped. Unlike in
many of their other allies, no modern US-made fighter jet exists in
our Air Force. We have no credible missile defense. Our Navy’s
most powerful assets now include a destroyer that was
decommissioned by the United States Coast Guard.
It is now suggested that these will change with the EDCA. It is
now suggested that this court should act to make that change
possible. Impliedly, it is thus also suggested that the Senate, or
Congress, or the People in a referendum as provided in our
Constitution, will be less patriotic than this court or the President.
There has never been a time in our history — and will never be a
time in the future — when the national interest of the United States
was subservient to ours. We cannot stake our future on how we
imagine the United States will behave in the future. We should learn
from our history. If we wish the United States to behave in a way
that we expect, then our government should demand clear
commitments for assistance to our primary interests. The likelihood
that this will happen increases when agreements with them run
through the gauntlet of public opinion before they become effective.
Certainly, this is what the Constitution provides. Certainly, this is
the least that we should guarantee as a court of law.

Final Note

In 1991, there was the “Senate that Said No” to the extension of
the stay of military bases of the United States within Philippine
territory. That historical decision defined the patriotism implicit in
our sovereignty. That single collective act of courage was supposed
to usher opportunities to achieve the vision of our Constitution for a
more meaningful but equal relationship with the American empire.
That act was the pinnacle of decades of people’s struggles.

713
VOL. 779, JANUARY 12, 2016 713


History will now record that in 2016, it is this Supreme Court
that said yes to the EDCA. This decision now darkens the colors of
what is left of our sovereignty as defined in our Constitution. The
majority’s take is the aftermath of squandered opportunity. We
surrender to the dual narrative of expediency and a hegemonic view
of the world from the eyes of a single superpower. The opinion of
the majority of this Supreme Court affirms executive privileges and
definitively precludes Senate and/or Congressional oversight in the
crafting of the most important policies in our relations with the
United States and, implicitly, its enemies and its allies. In its hurry to
abbreviate the constitutional process, the majority also excludes the
possibility that our people directly participate in a referendum called
to affirm the EDCA.
Article XVIII, Section 25 does not sanction the surreptitious
executive approval of the entry of United States military bases or
any of its euphemisms (i.e., “Agreed Locations”) through strained
and acrobatic implication from an ambiguous and completely
different treaty provision.
The majority succeeds in emasculating our Constitution.
Effectively, this court erases the blood, sweat, and tears shed by our
martyrs.
I register more than my disagreement. I mourn that this court has
allowed this government to acquiesce into collective subservience to
the Executive power contrary to the spirit of our basic law.
I dissent.
ACCORDINGLY, I vote to PARTIALLY GRANT the
Petitions and to DECLARE the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the
United States of America as a formal and official memorial of the
results of the negotiations concerning the allowance of United
States military bases, troops, or facilities in the Philippines, which is
NOT EFFECTIVE until it complies with the requisites of Article
XVIII, Section 25 of the

714


1987 Philippine Constitution, namely: (1) that the agreement
must be in the form of a treaty; (2) that the treaty must be duly
concurred in by the Philippine Senate and, when so required by
Congress, ratified by a majority of votes cast by the people in a
national referendum; and (3) that the agreement is either (a)
recognized as a treaty or (b) accepted or acknowledged as a treaty by
the United States before it becomes valid, binding, and effective.
Petitions dismissed.
Notes.—Article XVIII, Sec. 25 of the Constitution is 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 being to prevent a recurrence of what happened in the past.
(Nicolas vs. Romulo, 578 SCRA 438 [2009])
It is settled that “the conduct of the foreign relations of our
government is committed by the Constitution to the executive and
legislative — ‘the political’ — departments of the government, and
the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision.” (Arigo vs. Swift,
735 SCRA 102 [2014])

——o0o——

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G.R. No. 212426. January 12, 2016.*

G.R. No. 212444. January 12, 2016.*

242 SUPREME COURT REPORTS ANNOTATED

(DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT

Judicial Review; Distinguished from the general notion of judicial

VOL. 779, JANUARY 12, 2016 243

international or executive agreement, law, presidential decree,

Same; Actual Case or Controversy; The performance of an ofﬁcial act

VOL. 779, JANUARY 12, 2016 245

agreement are required to allege the existence of a personal stake in the

246 SUPREME COURT REPORTS ANNOTATED

Constitutional Law; Treaties; Power to Concur in a Treaty; The power

Same; Presidency; Foreign Military Bases; Despite the President’s

248 SUPREME COURT REPORTS ANNOTATED

VOL. 779, JANUARY 12, 2016 249

below, executive agreements are among those ofﬁcial governmental

250 SUPREME COURT REPORTS ANNOTATED

VOL. 779, JANUARY 12, 2016 251

when it stated that the Department of Foreign Affairs (DFA) “shall

252 SUPREME COURT REPORTS ANNOTATED

nor obligatory on the part of the Philippines to admit United States

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254 SUPREME COURT REPORTS ANNOTATED

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Same; Same; Same; For actual operations, Enhanced Defense

256 SUPREME COURT REPORTS ANNOTATED

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258 SUPREME COURT REPORTS ANNOTATED

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260 SUPREME COURT REPORTS ANNOTATED

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understood in international law. Republic Act No. 9522, amending the

262 SUPREME COURT REPORTS ANNOTATED

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264 SUPREME COURT REPORTS ANNOTATED

cooperation exercises; joint and combined training activities;

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266 SUPREME COURT REPORTS ANNOTATED

Same; Same; International Agreements; View that the Enhanced

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called Agreed Locations — which can be anywhere in the Philippines

268 SUPREME COURT REPORTS ANNOTATED

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270 SUPREME COURT REPORTS ANNOTATED

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the Philippines: the modern equivalent of the foreign military

272 SUPREME COURT REPORTS ANNOTATED

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agreement is already valid and enforceable. Upon such violation, the

274 SUPREME COURT REPORTS ANNOTATED

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276 SUPREME COURT REPORTS ANNOTATED

well that constitutional standards and limitations set by the Constitution

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agreement creates in the domestic sphere. Between a treaty and an

278 SUPREME COURT REPORTS ANNOTATED

reading that the ponencia’s conclusion — that Article XVIII, Section

VOL. 779, JANUARY 12, 2016 279