EN BANC

January 12, 2016

G.R. No. 212426

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

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G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M.

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

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

DECISION

SERENO, J.:

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

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the
constitutional powers and roles of the President and the Senate in respect of the above issues. A more
detailed discussion of these powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN

RELATIONS, AND EDCA

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

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

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

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas 5

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

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

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

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

In recognition of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats 12 and, in the same vein, ensure
that the country is adequately prepared for all national and local emergencies arising from natural and
man-made disasters.13

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

C. The power and duty to conduct foreign relations

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

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

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

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

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

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

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

II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine
independence

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

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

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

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

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

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

Soon after the Philippines was granted independence, the two countries entered into their first military
arrangement pursuant to the Treaty of General Relations - the 1947 MBA. 41 The Senate concurred on
the premise of "mutuality of security interest," 42 which provided for the presence and operation of 23
U.S. military bases in the Philippines for 99 years or until the year 2046. 43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the existing bases or to acquire new
ones as military necessity might require. 44

A number of significant amendments to the 1947 MBA were made. 45 With respect to its duration, the
parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99
years to a total of 44 years or until 1991. 46 Concerning the number of U.S. military bases in the country,
the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of 17 U.S.
military bases covering a total area of 117,075 hectares. 47 Twelve years later, the U.S. returned Sangley
Point in Cavite City through an exchange of notes. 48 Then, through the Romulo-Murphy Exchange of
Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over Clark and Subic Bases
and the reduction of the areas that could be used by the U.S. military. 49 The agreement also provided for
the mandatory review of the treaty every five years. 50 In 1983, the parties revised the 1947 MBA
through the Romualdez-Armacost Agreement. 51 The revision pertained to the operational use of the
military bases by the U.S. government within the context of Philippine sovereignty, 52 including the need
for prior consultation with the Philippine government on the former' s use of the bases for military
combat operations or the establishment of long-range missiles. 53

Pursuant to the legislative authorization granted under Republic Act No. 9, 54 the President also entered
into the 1947 Military Assistance Agreement 55 with the U.S. This executive agreement established the
conditions under which U.S. military assistance would be granted to the Philippines, 56 particularly the
provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the
latter's defense forces.57 An exchange of notes in 1953 made it clear that the agreement would remain in
force until terminated by any of the parties. 58

To further strengthen their defense and security relationship, 59 the Philippines and the U.S. next entered
into the MDT in 1951. Concurred in by both the Philippine 60 and the U.S.61 Senates, the treaty has two
main features: first, it allowed for mutual assistance in maintaining and developing their individual and
collective capacities to resist an armed attack; 62 and second, it provided for their mutual self-defense in
the event of an armed attack against the territory of either party. 63 The treaty was premised on their
recognition that an armed attack on either of them would equally be a threat to the security of the
other.64

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

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

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing
with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-scale joint
military exercises.69 In the meantime, the respective governments of the two countries agreed 70 to hold
joint exercises at a substantially reduced level. 71 The military arrangements between them were revived
in 1999 when they concluded the first Visiting Forces Agreement (VFA). 72

As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the country. 74 It contains
provisions on the entry and departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and
exportation of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II), which
in turn regulated the treatment of Philippine military and civilian personnel visiting the U.S. 76 The
Philippine Senate concurred in the first VFA on 27 May 1999. 77

Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part
in joint military exercises with their Filipino counterparts. 78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant to the MDT. 79

In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to
"further the interoperability, readiness, and effectiveness of their respective military forces" 80 in
accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA. 81 The new
agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal provision
of logistics support, supplies, and services between the military forces of the two countries. 82 The phrase
"logistics support and services" includes billeting, operations support, construction and use of temporary
structures, and storage services during an approved activity under the existing military
arrangements.83 Already extended twice, the agreement will last until 2017. 84

D. The Enhanced Defense Cooperation Agreement

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

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years. 87 After eight rounds of negotiations, the
Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement on 28
April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014. 89 The OSG clarified during the
oral arguments90 that the Philippine and the U.S. governments had yet to agree formally on the specific
sites of the Agreed Locations mentioned in the agreement.

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

On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file
their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105. 91 The resolution
expresses the "strong sense"92 of the Senators that for EDCA to become valid and effective, it must first
be transmitted to the Senate for deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of
discretion in entering into EDCA in the form of an executive agreement. For this reason, we cull the
issues before us:
 A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign military bases,
troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with
existing laws and treaties

IV. DISCUSSION

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

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

Distinguished from the general notion of judicial power, the power of judicial review specially refers to
both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers. 94 As articulated in Section
1, Article VIII of the Constitution, the power of judicial review involves the power to resolve cases in
which the questions concern the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power: 96

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

xxxx

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

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

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

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

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

1. That there be absolute necessity of deciding a case

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

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

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

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

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

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

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

It must be emphasized that the Senate has already expressed its position through SR 105. 108 Through the
Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to
participate in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional
role indicates that an actual controversy - albeit brought to the Court by non-Senators, exists.

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

[The] power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the judiciary in the determination
of actual cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the government.
(Emphases supplied)
We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S. Embassy
that "all internal requirements of the Philippines x x x have already been complied with." 113 By this
exchange of diplomatic notes, the Executive Department effectively performed the last act required
under Article XII(l) of EDCA before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the country shall only be allowed by
virtue of a treaty concurred in by the Senate. Hence, the performance of an official act by the Executive
Department that led to the entry into force of an executive agreement was sufficient to satisfy the
actual case or controversy requirement.

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

The question of locus standi or legal standing focuses on the determination of whether those assailing
the governmental act have the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and substantial interest in the case, such that
they have sustained or are in immediate danger of sustaining, some direct injury as a consequence of
the enforcement of the challenged governmental act. 115 Here, "interest" in the question involved must
be material - an interest that is in issue and will be affected by the official act - as distinguished from
being merely incidental or general.116 Clearly, it would be insufficient to show that the law or any
governmental act is invalid, and that petitioners stand to suffer in some indefinite way. 117 They must
show that they have a particular interest in bringing the suit, and that they have been or are about to be
denied some right or privilege to which they are lawfully entitled, or that they are about to be subjected
to some burden or penalty by reason of the act complained of. 118 The reason why those who challenge
the validity of a law or an international agreement are required to allege the existence of a personal
stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions."119

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

In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the
requirement of having to establish a direct and personal interest if they show that the act affects a
public right.120 In arguing that they have legal standing, they claim 121 that the case they have filed is a
concerned citizen's suit. But aside from general statements that the petitions involve the protection of a
public right, and that their constitutional rights as citizens would be violated, they fail to make any
specific assertion of a particular public right that would be violated by the enforcement of EDCA. For
their failure to do so, the present petitions cannot be considered by the Court as citizens' suits that
would justify a disregard of the aforementioned requirements.

In claiming that they have legal standing as taxpayers, petitioners 122 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 enforcement of the assailed act. 126 Applying that
principle to this case, they must establish that EDCA involves the exercise by Congress of its taxing or
spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a
taxpayers' suit contemplates a situation in which there is already an appropriation or a disbursement of
public funds.128 A reading of Article X(l) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated funds authorized for
these purposes. (Emphases supplied)

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

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

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

The legal standing of an institution of the Legislature or of any of its Members has already been
recognized by this Court in a number of cases. 131 What is in question here is the alleged impairment of
the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of, the
Legislature or an institution thereof.132 In the case of suits initiated by the legislators themselves, this
Court has recognized their standing to question the validity of any official action that they claim infringes
the prerogatives, powers, and privileges vested by the Constitution in their office. 133 As aptly explained
by Justice Perfecto in Mabanag v. Lopez Vito:134

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

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

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

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

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

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

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

Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition tackles
issues that are of transcendental importance. They point out that the matter before us is about the
proper exercise of the Executive Department's power to enter into international agreements in relation
to that of the Senate to concur in those agreements. They also assert that EDCA would cause grave
injustice, as well as irreparable violation of the Constitution and of the Filipino people's rights.

The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the present
petitions involve matters of transcendental importance in order to cure their inability to comply with the
constitutional requirement of standing. Respondent bewails the overuse of "transcendental
importance" as an exception to the traditional requirements of constitutional litigation. It stresses that
one of the purposes of these requirements is to protect the Supreme Court from unnecessary litigation
of constitutional questions.

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

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

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

We therefore rule that this case is a proper subject for judicial review.

B. Whether the President may enter into an executive agreement on foreign military bases,
troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with
existing laws and treaties

Issues B and C shall be discussed together infra.

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

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the
Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted with
powers categorized as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be exercised except by the
department given the power.144
This divide continued throughout the different versions of the Philippine Constitution and specifically
vested the supreme executive power in the Governor-General of the Philippines, 145 a position inherited
by the President of the Philippines when the country attained independence. One of the principal
functions of the supreme executive is the responsibility for the faithful execution of the laws as
embodied by the oath of office.146 The oath of the President prescribed by the 1987 Constitution reads
thus:

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

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

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

The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the
President. In the 1973 Constitution, for instance, the provision simply gives the President control over
the ministries.149 A similar language, not in the form of the President's oath, was present in the 1935
Constitution, particularly in the enumeration of executive functions. 150 By 1987, executive power was
codified not only in the Constitution, but also in the Administrative Code: 151

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

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

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

More important, this mandate is self-executory by virtue of its being inherently executive in nature. 160 As
Justice Antonio T. Carpio previously wrote,161

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

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

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged. It
is still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the government. A
feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The mistakes of State governments need not
be repeated here.

xxxx

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

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

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

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

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the
analysis, if read holistically and in context. The concept that the President cannot function with crippled
hands and therefore can disregard the need for Senate concurrence in treaties 167 was never expressed
or implied. Rather, the appropriate reading of the preceding analysis shows that the point being
elucidated is the reality that the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued with
both concerns to the full extent of his powers, subject only to the limits supplied by law. In other words,
apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner of
execution by the President must be given utmost deference. This approach is not different from that
taken by the Court in situations with fairly similar contexts.

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

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

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

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

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

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

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

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

This ruling has been incorporated in our jurisprudence through  Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated
in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:

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

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

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

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

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

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

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

3. The President, however, may enter into an executive agreement on foreign military bases, troops,
or facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or (b) it merely aims to implement an existing law or treaty.

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

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

In view of this provision, petitioners argue 170 that EDCA must be in the form of a "treaty" duly concurred
in by the Senate. They stress that the Constitution is unambigous in mandating the transmission to the
Senate of all international agreements concluded after the expiration of the MBA in 1991 - agreements
that concern the presence of foreign military bases, troops, or facilities in the country. Accordingly,
petitioners maintain that the Executive Department is not given the choice to conclude agreements like
EDCA in the form of an executive agreement.

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

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

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

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

First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the
powers of the President. When the Court validated the concept of "executive agreement," it did so with
full knowledge of the Senate's role in concurring in treaties. It was aware of the problematique of
distinguishing when an international agreement needed Senate concurrence for validity, and when it did
not; and the Court continued to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the power of the President to enter
into an executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that as late as 2009, 174 this Court
continued to recognize its validity.

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

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

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

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

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that
further construction must be done to elicit its meaning. 179 In Ang Bagong Bayani-OFW v. Commission on
Elections,180 we reiterated this guiding principle:

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

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

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

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

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

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

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

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

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

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
legis construction to the words of Article XVIII, Section 25. 187 It claims that the provision is "neither plain,
nor that simple."188 To buttress its disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947 MBA. 189 Accordingly, this position requires
questioning the circumstances that led to the historical event, and the meaning of the terms under
Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable just because
a provision has a specific historical context. In fact, every provision of the Constitution has a specific
historical context. The purpose of constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular provision functions. Verba legis is of paramount
consideration, but it is not the only consideration. As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its language as much as possible
should be understood in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus, these are the cases where
the need for construction is reduced to a minimum.190 (Emphases supplied)

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

4. The President may generally enter into executive agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty already concurred in by the Senate.

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

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more
exacting requirement was introduced because of the previous experience of the country when its
representatives felt compelled to consent to the old MBA. 191 They felt constrained to agree to the MBA
in fulfilment of one of the major conditions for the country to gain independence from the U.S. 192 As a
result of that experience, a second layer of consent for agreements that allow military bases, troops and
facilities in the country is now articulated in Article XVIII of our present Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely ignore
the intent of our constitutional framers when they provided for that additional layer, nor the vigorous
statements of this Court that affirm the continued existence of that class of international agreements
called "executive agreements."

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

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

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

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or

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

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

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

The categorization of subject matters that may be covered by international

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

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights, the environment, and the sea. In
fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety, among others. Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which
the international agreement format would be convenient to serve its best interest. As Francis Sayre
said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the large variety of executive agreements as such
concluded from time to time. Hundreds of executive agreements, other than those entered into under
the trade-agreement act, have been negotiated with foreign governments. . . . They cover such subjects
as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air
craft, custom matters and commercial relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etc .... (Emphases Supplied)

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

Treaties are formal documents which require ratification with the approval of two-thirds of the

Senate. Executive agreements become binding through executive action without the need of a vote by
the Senate or by Congress.

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of subsequent

Congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned
by our courts. (Emphases Supplied)

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

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

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

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is purely
proceeding from an executive act which affects external relations independent of the legislative and
the other is an executive act in pursuance of legislative authorization. The first kind might take the
form of just conventions or exchanges of notes or protocol while the other, which would be pursuant
to the legislative authorization, may be in the nature of commercial agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced

or to determine the details for the implementation of the treaty. We are speaking of executive
agreements, not international agreements.

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

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines
is concerned.

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

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

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

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

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

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

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

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially
but which are proceeding from the authorization of Congress. If that is our understanding, then I am
willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
concurrence by Congress.

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

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these
executive agreements must rely on treaties. In other words, there must first be treaties.

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

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

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be
included in a provision of the Constitution requiring the concurrence of Congress.

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

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.

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

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

xxx

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

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again recognized
in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the
present Constitution, quoted Eastern Sea Trading in reiterating that executive agreements are valid and
binding even without the concurrence of the Senate.

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

The special nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer necessitate
ratification.212 An international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of notes,
statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between a treaty and an international
agreement or even an executive agreement is irrelevant for purposes of determining international rights
and obligations.

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

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

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate 215 unlike executive agreements, which are solely
executive actions.216 Because of legislative participation through the Senate, a treaty is regarded as being
on the same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior. 218 An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective. 219 Both types of
international agreement are nevertheless subject to the supremacy of the Constitution. 220
This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power
must still be exercised within the context and the parameters set by the Constitution, as well as by
existing domestic and international laws. There are constitutional provisions that restrict or limit the
President's prerogative in concluding international agreements, such as those that involve the following:

a. The policy of freedom from nuclear weapons within Philippine 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

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

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary 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 executive agreement or a treaty.

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

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

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

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

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

a. Treaties are formal contracts between the Philippines and other States-parties, which
are in the nature of international agreements, and also of municipal laws in the sense of
their binding nature.226

b. International agreements are similar instruments, the provisions of which may

require the ratification of a designated number of parties thereto. These agreements
involving political issues or changes in national policy, as well as those involving
international agreements of a permanent character, usually take the form of treaties.
 They may also include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by Congress, thus dispensing
with the requirement of concurrence by the Senate. 227

c. Executive agreements are generally intended to implement a treaty already enforced

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

2. Treaties and international agreements that cannot be mere executive agreements must, by
constitutional decree, be concurred in by at least two-thirds of the Senate.

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

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

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

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

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

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

xxxx

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

xxxx

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

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the day, the President - by ratifying, thru her
deputies, the non-surrender agreement - did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office. (Emphases supplied)

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

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements
and its Ratification, thus, correctly reflected the inherent powers of the President when it stated that
the DFA "shall determine whether an agreement is an executive agreement or a treaty."

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

6. Executive agreements may cover the matter of foreign military forces if it merely involves detail
adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In fact,
the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.231 In that case,
the Court was asked to scrutinize the constitutionality of the Terms of Reference of the Balikatan 02-
1 joint military exercises, which sought to implement the VFA. Concluded in the form of an executive
agreement, the Terms of Reference detailed the coverage of the term "activities" mentioned in the
treaty and settled the matters pertaining to the construction of temporary structures for the U.S. troops
during the activities; the duration and location of the exercises; the number of participants; and the
extent of and limitations on the activities of the U.S. forces. The Court upheld the Terms of Reference as
being consistent with the VFA. It no longer took issue with the fact that the Balikatan Terms of
Reference was not in the form of a treaty concurred in by the Senate, even if it dealt with the regulation
of the activities of foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an
attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces member,
whose case was pending appeal after his conviction by a trial court for the crime of rape. In testing the
validity of the latter agreement, the Court precisely alluded to one of the inherent limitations of an
executive agreement: it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former
was squarely inconsistent with a provision in the treaty requiring that the detention be "by Philippine
authorities." Consequently, the Court ordered the Secretary of Foreign Affairs to comply with the VFA
and "forthwith negotiate with the United States representatives for the appropriate agreement on
detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA. " 233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases, troops,
or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and (b) it must
be duly concurred in by the Senate.

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

3. The executive agreement must not go beyond the parameters, limitations, and standards set
by the law and/or treaty that the former purports to implement; and must not unduly expand
the international obligation expressly mentioned or necessarily implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, as well as with existing
laws and treaties.

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

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

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

In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework
of the treaty antecedents to which the Philippines bound itself," 235 i.e., the MDT and the VFA. The Court
proceeded to examine the extent of the term "activities" as contemplated in Articles 1 236 and II237 of the
VFA. It later on found that the term "activities" was deliberately left undefined and ambiguous in order
to permit "a wide scope of undertakings subject only to the approval of the Philippine
government"238 and thereby allow the parties "a certain leeway in negotiation." 239 The Court eventually
ruled that the Terms of Reference fell within the sanctioned or allowable activities, especially in the
context of the VFA and the MDT.

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

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends
the VFA"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 U.S. equipment, materials,
supplies, and other property are imported into or acquired in the Philippines by or on behalf of the U.S.
Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in connection with
activities under the VFA. These provisions likewise provide for the waiver of the specific duties, taxes,
charges, and fees that correspond to these equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry
of troops for training exercises, whereas EDCA allows the use of territory for launching military and
paramilitary operations conducted in other states. 245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat activides only, whereas the entry and activities
of U.S. forces into Agreed Locations were borne of military necessity or had a martial character, and
were therefore not contemplated by the VFA. 246
This Court's jurisprudence however established in no uncertain terms that combat-related activities, as
opposed to actual combat, were allowed under the MDT and VFA, viz:

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

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

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

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

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

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

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

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

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S. personnel
and (2) U.S. contractors

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

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

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

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

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

"United States personnel" means United States military and civilian personnel temporarily in the

territory of the Philippines in connection with activities approved by the Philippines, as those terms are
defined in the VFA.252

"United States forces" means the entity comprising United States personnel and all property,

equipment, and materiel of the United States Armed Forces present in the territory of the Philippines. 253

"United States contractors" means companies and firms, and their employees, under contract or

subcontract to or on behalf of the United States Department of Defense. United States contractors
are not included as part of the definition of United States personnel in this Agreement, including within
the context of the VFA.254

United States forces may contract for any materiel, supplies, equipment, and services (including
construction) to be furnished or undertaken in the territory of the Philippines without restriction as to
choice of contractor, supplier, or person who provides such materiel, supplies, equipment, or services.
Such contracts shall be solicited, awarded, and administered in accordance with the laws and
regulations of the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with the
entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and II(4)257 speak
of "the right to access and use" the Agreed Locations, their wordings indicate the presumption that
these groups have already been allowed entry into Philippine territory, for which, unlike the VFA, EDCA
has no specific provision. Instead, Article II of the latter simply alludes to the VFA in describing U.S.
personnel, a term defined under Article I of the treaty as follows:

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

1. The term "military personnel" refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.

2. The term "civilian personnel" refers to individuals who are neither nationals of nor

ordinarily resident in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.258

Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:

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

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

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

3. The following documents only, which shall be required in respect of United States military
personnel who enter the Philippines; xx xx.

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

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

Based on the above provisions, the admission and presence of U.S. military and civilian personnel in
Philippine territory are already allowed under the VFA, the treaty supposedly being implemented by
EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to identify the
locations in which U.S. personnel may perform allowed activities pursuant to the VFA. As the
implementing agreement, it regulates and limits the presence of U.S. personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory; their
entry must be sourced from extraneous Philippine statutes and regulations for the admission of alien
employees or business persons.

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

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

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is "a
matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are accorded entry accommodations,
U.S. contractors are subject to Philippine immigration laws. 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 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. contractors 265 as
may be necessitated by national security, public safety, public health, public morals, and national
interest.266 They may also be deported if they are found to be illegal or undesirable aliens pursuant to
the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of the VFA
requires a request for removal from the Philippine government before a member of the U.S. personnel
may be "dispos[ed] xx x outside of the Philippines."

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

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

MUTUAL DEFENSE TREATY

Article II

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

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

VISITING FORCES AGREEMENT

Preamble

xxx

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

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

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

xxx

Article I - Definitions

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

Article II - Respect for Law

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

Article VII - Importation and Exportation

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

Article VIII - Movement of Vessels and Aircraft

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

Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these implementing arrangements and activities, we
referred to the content, purpose, and framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation 269 and the subsequent practice270 of the parties show
that the MDT independently allows joint military exercises in the country. Lim v. Executive
Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities that seek
to enhance and develop the strategic and technological capabilities of the parties to resist an armed
attack, "fall squarely under the provisions of the RP-US MDT." 273 In Lim, the Court especially noted that
the Philippines and the U.S. continued to conduct joint military exercises even after the expiration of the
MBA and even before the conclusion of the VFA. 274 These activities presumably related to the Status of
Forces Agreement, in which the parties agreed on the status to be accorded to U.S. military and civilian
personnel while conducting activities in the Philippines in relation to the MDT. 275

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

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

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

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

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

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the

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

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

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

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

xxxx

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

xxxx

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

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

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

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and
disaster relief activities; and such other activities as may be agreed upon by the 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

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

5. Use of water, electricity, and other public 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 respective resources, equipment and
other assets; and (e) exercise their right to self-defense. We quote the relevant portion of the Terms and
Conditions as follows:286

I. POLICY LEVEL
 xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as those

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

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

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

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

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

xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

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

II. EXERCISE LEVEL

1. TRAINING

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

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

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

2. ADMINISTRATION & LOGISTICS

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

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

Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with
the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of EDCA
has an initial term of 10 years, a term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.

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

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this
method does not create a permanent obligation.

Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA
does not include a maximum time limit with respect to the presence of U.S. personnel in the country.
We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate in
the entire text of the VFA as an implicit grant to the President of a margin of appreciation in determining
the duration of the "temporary" presence of U.S. personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.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(l) of the U.S.-Romania defense agreement
provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in accordance with the
internal laws of each Party x x x. (emphasis supplied)

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

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

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

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

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

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

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

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-
bound to defend our national sovereignty and territorial integrity; 291 who, as chief architect of our
foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security and
interests;292 who holds the most comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who has unrestricted access to
highly classified military intelligence data 294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer
period of military training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.

Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the
President may not always be able to candidly and openly discuss the complete situation being faced by
the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls for
crafting programs and setting timelines for approved activities. These activities may be necessary for
maintaining and developing our capacity to resist an armed attack, ensuring our national sovereignty
and territorial integrity, and securing our national interests. If the Senate decides that the President is in
the best position to define in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy decision. If the Senate feels
that there is no need to set a time limit to these visits, neither should we.

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

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

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

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

1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel; deployment
of forces and materiel; and such other activities as the Parties may 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
materiel298

3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws,
regulations, and policies299

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

The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign
Investment Negative list,302 the Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that
cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487; 303 and No. 15, which
regulates contracts for the construction of defense-related structures based on Commonwealth Act No.
541.

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

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

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

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

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

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

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

EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in the
Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through the
"euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article II(4) of
EDCA, they point out that these locations are actually military bases, as the definition refers to facilities
and areas to which U.S. military forces have access for a variety of purposes. Petitioners claim that there
are several badges of exclusivity in the use of the Agreed Locations by U.S. forces. First, Article V(2) of
EDCA alludes to a "return" of these areas once they are no longer needed by U.S. forces, indicating that
there would be some transfer of use. Second, Article IV(4) ofEDCA talks about American forces'
unimpeded access to the Agreed Locations for all matters relating to the prepositioning and storage of
U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S. forces to use
public utilities and to operate their own telecommunications system.

a. Preliminary point on badges of exclusivity

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

"badges of exclusivity," despite the presence of contrary provisions within the text of the agreement
itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is
within the context of a lengthy provision. The provision as a whole reads as follows:

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

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

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

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

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership,
use, and control of the U.S. over its own equipment, supplies, and materiel and must have first been
allowed by the joint mechanisms in play between the two states since the time of the MDT and the VFA.
It is not the use of the Agreed Locations that is exclusive per se; it is mere access to items in order to
exercise the rights of ownership granted by virtue of the Philippine Civil Code. 318

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow similar
activities within the area; (b) provide for the same "species of ownership" over facilities; and (c) grant
operational control over the entire area. Finally, they argue 320 that EDCA is in fact an implementation of
the new defense policy of the U.S. According to them, this policy was not what was originally intended
either by the MDT or by the VFA.

On these points, the Court is not persuaded.

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

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

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

The parallelism, however, ends when the situation involves facilities that can be considered immovable.
Under the MBA, the U.S. retains ownership if it paid for the facility. 325 Under EDCA, an immovable is
owned by the Philippines, even if built completely on the back of U.S. funding. 326 This is consistent with
the constitutional prohibition on foreign land ownership. 327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be
considered before the constitutional restriction is violated. Thus, petitioners' points on operational
control will be given more attention in the discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed

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

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

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

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

1947 MBA/ 1946 Treaty of General Relations EDCA

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

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

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

Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when it
came to deciding whether to expand or to increase the number of bases, as the Philippines may be
compelled to negotiate with the U.S. the moment the latter requested an expansion of the existing
bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the Philippines.

1947 MBA/ 1946 Treaty of General Relations EDCA

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

The Philippines agree to enter into Recognizing that all United States access to and

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

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

1947 MBA EDCA

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

The Philippine Designated Authority and its

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

agreement with the Philippines, have the right the Philippines hereby authorizes and agrees
to use land and coastal sea areas of appropriate that United States forces, United States
size and location for periodic maneuvers, for contractors, and vehicles, vessels, and aircraft
additional staging areas, bombing and gunnery operated by or for United States forces may
ranges, and for such intermediate airfields as conduct the following activities with respect to
may be required for safe and efficient air Agreed Locations: training; transit; support and
operations. Operations in such areas shall be related activities; refueling of aircraft; bunkering
carried on with due regard and safeguards for of vessels; temporary maintenance of vehicles,
the public safety. vessels, and aircraft; temporary accommodation
of personnel; communications; prepositioning
1947 MBA, Art.I(2): of equipment, supplies, and materiel; deploying
forces and materiel; and such other activities as
The Philippines agrees to permit the United the Parties may agree.
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.
Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not have
any right, power, or authority to do so under EDCA.

1947 MBA EDCA

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

Such rights, power and authority shall

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

Whenever it is necessary to acquire by

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

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

1947 MBA EDCA

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

It is mutually agreed that the United States shall 1. "United States personnel" means United
have the right to bring into the States military and civilian
Philippines members of the United States personnel temporarily in the territory of the
military forces and the United States nationals Philippines in connection with activities
employed by or under a contract with the approved by the Philippines, as those terms are
United States together with their families, and defined in the VFA.
technical personnel of other nationalities (not
being persons excluded by the laws of the x xx x
Philippines) in connection with the construction,
maintenance, or operation of the bases. The 3. "United States contractors" means
United States shall make suitable arrangements companies and firms, and their employees,
so that such persons may be readily identified under contract or subcontract to or on behalf of
and their status established when necessary by the United States Department of Defense.
the Philippine authorities. Such persons, other United States contractors are not included as
than members of the United States armed part of the definition of United States
forces in uniform, shall present their travel personnel in this Agreement, including within
documents to the appropriate Philippine the context of the VFA.
authorities for visas, it being understood that no
 objection will be made to their travel to the  
Philippines as non-immigrants.

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

1947 MBA EDCA

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

The Philippines consents that the United

States shall have the right to exercise

jurisdiction over the following offenses: (a) Any
offense committed by any person within any
base except where the offender and offended
parties are both Philippine citizens (not
members of the armed forces of the United
States on active duty) or the offense is against
the security of the Philippines.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is free
of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the PX
store has become the cultural icon of U.S. military presence in the country.

1947 MBA EDCA

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

It is mutually agreed that the United States

shall have the right to establish on bases, free

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

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the
1987 Constitution was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and
"facilities" is required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital in
determining whether EDCA breached the constitutional restriction.

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

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

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986
Constitutional Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac 329

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

Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the
sound and balanced conversion into alternative productive uses of the Clark and Subic military
reservations and their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter Station,
San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the sale of
portions of Metro Manila military camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the lands covered under the 194 7 Military
Bases Agreement between the Philippines and the United States of America, as amended. 330

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

Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology and
geopolitics has surpassed the understanding of the Philippine people in 1986. The last direct military
action of the U.S. in the region was the use of Subic base as the staging ground for Desert Shield and
Desert Storm during the Gulf War.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

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

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

By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes
Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to
"conduct the following activities: "training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may agree."

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

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

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

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

SPEECH OF COMMISSIONER REGALADO334

xxxx

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

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

xxxx

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

xxxx

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

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

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

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

2. That no lasting peace and no true sovereignty would ever be achieved so long as there are
foreign military forces in our country;

3. That the presence of foreign military bases deprives us of the very substance of national
sovereignty and this is a constant source of national embarrassment and an insult to our
national dignity and selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to devastating nuclear
attacks;

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

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our country
of jurisdiction over civil and criminal offenses committed within our own national territory and
against Filipinos;
 7. That the bases agreements are colonial impositions and dictations upon our helpless country;
and

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and
void ab initio, especially because they did not count the sovereign consent and will of the
Filipino people.338

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

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

SPEECH OF COMMISSIONER BACANI342

xxxx

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

SPEECH OF COMMISSIONER JAMIR344

xxxx

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

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

SPEECH OF COMMISSIONER TINGSON346

xxxx

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

xxxx

Allow me to say in summation that I am for the retention of American military bases in the Philippines
provided that such an extension from one period to another shall be concluded upon concurrence of
the parties, and such extension shall be based on justice, the historical amity of the people of the
Philippines and the United States and their common defense interest.348

SPEECH OF COMMISSIONER ALONTO349

xxxx

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

Madam President, I submit that I am one of those ready to completely remove any vestiges of the
days of enslavement, but not prepared to erase them if to do so would merely leave a vacuum to be
occupied by a far worse type.350

SPEECH OF COMMISSIONER GASCON351

xxxx

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

xxxx

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

xxxx

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

xxxx

SPEECH OF COMMISSIONER TADEO354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang

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

SPEECH OF COMMISSIONER QUESADA356

xxxx

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

xxxx

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

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

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the response
of the Filipino people against this condition and other conditions that have already been clearly and
emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the Constitution we
are drafting will have the following implications:

First, the failure of the Constitutional Commission to decisively respond to the continuing violation of
our territorial integrity via the military bases agreement which permits the retention of U.S. facilities
within the Philippine soil over which our authorities have no exclusive jurisdiction contrary to the
accepted definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the application of a
provision in the Bill of Rights that we have just drafted regarding equal application of the laws of the
land to all inhabitants, permanent or otherwise, within its territorial boundaries.

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

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

xxxx

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

xxxx

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

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

SPEECH OF COMMISSIONER P ADILLA360

xxxx

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

REBUTTAL OF COMMISSIONER NOLLEDO362

xxxx

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

xxxx

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

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

i. First standard: independence from foreign control

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

Under the Civil Code, there are several aspects of control exercised over property.

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

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

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

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

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

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

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

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

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation from
the point of view of the Philippine government, which balanced constitutional restrictions on foreign
military bases and facilities against the security needs of the country. In the 1947 MBA, the U.S. forces
had "the right, power and authority x x x to construct (including dredging and filling), operate, maintain,
utilize, occupy, garrison and control the bases." 375 No similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been
raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities
shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate. Merely
stating that the Philippines would retain ownership would do violence to the constitutional requirement
if the Agreed Locations were simply to become a less obvious manifestation of the U.S. bases that were
rejected in 1991.

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

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

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

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

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

This logic was accepted in 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.1âwphi1 The essence of that independence is self-
governance and self-control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380

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

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

This argument misreads the text, which is quoted below:

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

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

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

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

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

At times, though, operational control can mean something slightly different. In JUSMAG Philippines v.
National Labor Relations Commission, the Memorandum of Agreement between the AFP and JUSMAG
Philippines defined the term as follows: 384

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

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

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

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

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

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

For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command
and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and control
from operational control in U.S. parlance. 392 Citing the Doctrine for the Armed Forces of the United
States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of authority and
direction by a properly designated commander over assigned and attached forces in the
accomplishment of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the overall control of assigned resources, and the full
authoritative direction necessary to accomplish the mission." 394

Two things demonstrate the errors in petitioners' line of argument.

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

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:398

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

Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform those
functions of command over subordinate forces involving organizing and employing commands and
forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of
military operations and joint training necessary to accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations; normally, this authority is exercised through
subordinate JFCs, Service, and/or functional component commanders. OPCON provides authority to
organize and employ commands and forces as the commander considers necessary to accomplish
assigned missions. It does not include authoritative direction for logistics or matters of administration,
discipline, internal organization, or unit training. These elements of COCOM must be specifically
delegated by the CCDR. OPCON does include the authority to delineate functional responsibilities and
operational areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a mission.
Operational control is a narrower power and must be given, while command and control is plenary and
vested in a commander. Operational control does not include the planning, programming, budgeting,
and execution process input; the assignment of subordinate commanders; the building of relationships
with Department of Defense agencies; or the directive authority for logistics, whereas these factors are
included in the concept of command and control. 400

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

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

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

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

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

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

ii. Second standard: Philippine sovereignty and applicable law

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

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

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

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

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

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

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

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

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

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

Petitioners quote from the website http://en.wikipedia.org to define what a military base is. 415 While the
source is not authoritative, petitioners make the point that the Agreed Locations, by granting access and
use to U.S. forces and contractors, are U.S. bases under a different name. 416 More important, they claim
that the Agreed Locations invite instances of attack on the Philippines from enemies of the U.S. 417

We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics
and policy. At the very least, we can say that under international law, EDCA does not provide a legal
basis for a justified attack on the Philippines.

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

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

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

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

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to
be protected, unless proven otherwise. 427 Moreover, the principle of distinction requires combatants in
an armed conflict to distinguish between lawful targets 428 and protected targets.429 In an actual armed
conflict between the U.S. and a third state, the Agreed Locations cannot be considered U.S. territory,
since ownership of territory even in times of armed conflict does not change. 430

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

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

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

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

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement 432

2. 2009 U.S.-Colombia Defense Cooperation Agreement 433

3. 2009 U.S.-Poland Status of Forces Agreement 434

4. 2014 U.S.-Australia Force Posture Agreement 435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement 436

In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That
access is without rental or similar costs to the U.S. 438 Further, U.S. forces are allowed to undertake
construction activities in, and make alterations and improvements to, the agreed locations, facilities, or
areas.439 As in EDCA, the host states retain ownership and jurisdiction over the said bases. 440

In fact, some of the host states in these agreements give specific military-related rights to the U.S. For
example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States
forces x x x are authorized access to and may use agreed facilities and areas x x x for staging and
deploying of forces and materiel, with the purpose of conducting x x x contingency operations and other
missions, including those undertaken in the framework of the North Atlantic Treaty." In some of these
agreements, host countries allow U.S. forces to construct facilities for the 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 2007, which are essentially executive agreements that implement the VFA, the MDT, and
the 1953 Military Assistance Agreement. These executive agreements similarly tackle the "reciprocal
provision of logistic support, supplies, and services," 442 which include "[b ]illeting, x x x operations
support (and construction and use of temporary structures incident to operations support), training
services, x x x storage services, x x x during an approved activity." 443 These logistic supplies, support, and
services include temporary use of "nonlethal items of military equipment which are not designated as
significant military equipment on the U.S. Munitions List, during an approved activity." 444 The first
Mutual Logistics Support Agreement has lapsed, while the second one has been extended until 2017
without any formal objection before this Court from the Senate or any of its members.

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

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

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

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

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help
and defense in the Pacific area.453 We believe that any discussion of the activities to be undertaken
under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note that a proper
petition on that issue must be filed before we rule thereon. We also note that none of the petitions or
memoranda has attempted to discuss this issue, except only to theorize that the U.S. will not come to
our aid in the event of an attack outside of the Pacific. This is a matter of policy and is beyond the scope
of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility
adverted to does appear to be one of those that require a public franchise by way of congressional
action under Section 11, Article XII of the Constitution. As respondents submit, however, the system
referred to in the agreement does not provide telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication system is solely for
the use of the U.S. and not the public in general, and that this system will not interfere with that which
local operators use. Consequently, a public franchise is no longer necessary.

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

EPILOGUE

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

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

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

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

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

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice

EN BANC

G.R. No. 138570               October 10, 2000

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

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

G.R. No. 138572               October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT

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

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

G.R. No. 138587               October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners,

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

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

G.R. No. 138680               October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON.
DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

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

G.R. No. 138698               October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO SIMBULAN,

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

DECISION

BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition
are issues relating to, and borne by, an agreement forged in the turn of the last century between the
Republic of the Philippines and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement
which formalized, among others, the use of installations in the Philippine territory by United States
military personnel. To further strengthen their defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties
agreed to respond to any external armed attack on their territory, armed forces, public vessels, and
aircraft.1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of the military bases agreement. On September
16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the presence of US military bases in the
Philippines.2 With the expiration of the RP-US Military Bases Agreement, the periodic military exercises
conducted between the two countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of America continued pursuant to
the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on "the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences and negotiations 3 that
culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA.4

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, 5 the Instrument of Ratification, the letter of the
President6 and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The
Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople,
and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their
joint consideration and recommendation. Thereafter, joint public hearings were held by the two
Committees.7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 8 recommending the
concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee
its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds
(2/3) vote9 of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No.
18.10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating
the circumstances and conditions under which US Armed Forces and defense personnel may be present
in the Philippines, and is quoted in its full text, hereunder:

"Article I
Definitions

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

"Within this definition:

"1. The term ‘military personnel’ refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.

"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.

"Article II
Respect for Law

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

"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered
by this agreement.

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

"3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the Philippines:

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

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

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

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

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

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

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

"Article IV

Driving and Vehicle Registration

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

"2. Vehicles owned by the Government of the United States need not be registered, but
shall have appropriate markings.
 "Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the law of
the Philippines.

(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the military
law of the United States over United States personnel in the Philippines.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the
Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating
to security means:

(1) treason;

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

"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.

(b) United States military authorities shall have the primary right to exercise jurisdiction
over United States personnel subject to the military law of the United States in relation
to.

(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official
duty.
 (c) The authorities of either government may request the authorities of the
other government to waive their primary right to exercise jurisdiction in a
particular case.

(d) Recognizing the responsibility of the United States military authorities to

maintain good order and discipline among their forces, Philippine authorities
will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the
United States request.

(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel arises
out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require a
review of the duty certificate, United States military authorities and Philippine
authorities shall consult immediately. Philippine authorities at the highest levels
may also present any information bearing on its validity. United States military
authorities shall take full account of the Philippine position. Where appropriate,
United States military authorities will take disciplinary or other action against
offenders in official duty cases, and notify the Government of the Philippines of
the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.

"4. Within the scope of their legal competence, the authorities of the Philippines and United States shall
assist each other in the arrest of United States personnel in the Philippines and in handling them over to
authorities who are to exercise jurisdiction in accordance with the provisions of this article.

"5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military authorities of the arrest or detention
of any United States personnel.

"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of
the offense until completion of all judicial proceedings. United States military authorities shall, upon
formal notification by the Philippine authorities and without delay, make such personnel available to
those authorities in time for any investigative or judicial proceedings relating to the offense with which
the person has been charged in extraordinary cases, the Philippine Government shall present its position
to the United States Government regarding custody, which the United States Government shall take into
full account. In the event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one-year period will not include the
time necessary to appeal. Also, the one-year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for
the attendance of witnesses and in the collection and production of evidence, including seizure and, in
proper cases, the delivery of objects connected with an offense.

"8. When United States personnel have been tried in accordance with the provisions of this Article and
have been acquitted or have been convicted and are serving, or have served their sentence, or have had
their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline arising from the
act or omission which constituted an offense for which they were tried by Philippine authorities.

"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At
the minimum, United States personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such witnesses;

(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;

(e) To have free and assisted legal representation of their own choice on the same basis
as nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States

authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel shall be carried
out in facilities agreed on by appropriate Philippine and United States authorities. United States
Personnel serving sentences in the Philippines shall have the right to visits and material assistance.

"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and
shall not be subject to the jurisdiction of Philippine military or religious courts.

"Article VI
Claims

"1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments
waive any and all claims against each other for damage, loss or destruction to property
of each other’s armed forces or for death or injury to their military and civilian
personnel arising from activities to which this agreement applies.

"2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with United
States law regarding foreign claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss, personal injury or death, caused by
acts or omissions of United States personnel, or otherwise incident to the non-combat
activities of the United States forces.

"Article VII
Importation and Exportation

"1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States armed
forces in connection with activities to which this agreement applies, shall be free of all
Philippine duties, taxes and other similar charges. Title to such property shall remain
with the United States, which may remove such property from the Philippines at any
time, free from export duties, taxes, and other similar charges. The exemptions provided
in this paragraph shall also extend to any duty, tax, or other similar charges which would
otherwise be assessed upon such property after importation into, or acquisition within,
the Philippines. Such property may be removed from the Philippines, or disposed of
therein, provided that disposition of such property in the Philippines to persons or
entities not entitled to exemption from applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval of the Philippine Government.

"2. Reasonable quantities of personal baggage, personal effects, and other property for
the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of their
temporary stay in the Philippines. Transfers to persons or entities in the Philippines not
entitled to import privileges may only be made upon prior approval of the appropriate
Philippine authorities including payment by the recipient of applicable duties and taxes
imposed in accordance with the laws of the Philippines. The exportation of such
 property and of property acquired in the Philippines by United States personnel shall be
free of all Philippine duties, taxes, and other similar charges.

"Article VIII
Movement of Vessels and Aircraft

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

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

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall
not be subject to the payment of landing or port fees, navigation or over flight charges,
or tolls or other use charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall observe local air traffic
control regulations while in the Philippines. Vessels owned or operated by the United
States solely on United States Government non-commercial service shall not be subject
to compulsory pilotage at Philippine ports.

"Article IX
Duration and Termination

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

Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-

governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute
to herein respondents grave abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

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

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US
military personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for
the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have not
shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or
will sustain direct injury as a result of the operation of the VFA. 12 Petitioners, on the other hand, counter
that the validity or invalidity of the VFA is a matter of transcendental importance which justifies their
standing.13

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that
the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way." He must show that he has been, or is about to be, denied some right or privilege to
which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason
of the statute complained of.14

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing
or spending powers.15 On this point, it bears stressing that a taxpayer’s suit refers to a case where the
act complained of directly involves the illegal disbursement of public funds derived from taxation. 16 Thus,
in Bugnay Const. & Development Corp. vs. Laron17 , we held:

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

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-legislators,
do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil.
Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal standing of a member of the
Senate and the House of Representatives to question the validity of a presidential veto or a condition
imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners’
standing as members of Congress, in the absence of a clear showing of any direct injury to their person
or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of
Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners
pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners failed
however to sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases.
As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action.19

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers
Cases,20 where we had occasion to rule:

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

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs.
Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 where we emphatically held:

"Considering however the importance to the public of the case at bar, and in keeping with the Court’s
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others’ acts,25 this Court nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the Constitution
applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA.
Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject
the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that
Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel engaged in joint military
exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."

Section 25, Article XVIII, provides:

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

Section 21, Article VII deals with treatise or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays
down the general rule on treatise or international agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic
in nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further
requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other, actually
share some common ground. These constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause
"No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both
instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of section 21, Article VII will find applicability with regard to the issue and for
the sole purpose of determining the number of votes required to obtain the valid concurrence of the
Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment must
be taken to affect only such cases within its general language which are not within the provision of the
particular enactment.26

In Leveriza vs. Intermediate Appellate Court,27 we enunciated:

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

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between "transient’ and
"permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since
no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a
perusal of said constitutional provision reveals that the proscription covers "foreign military bases,
troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to "foreign military bases,
troops, or facilities" collectively but treats them as separate and independent subjects. The use of
comma and the disjunctive word "or" clearly signifies disassociation and independence of one thing
from the others included in the enumeration, 28 such that, the provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or
(c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article
XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation:

"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If
the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or
could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not
bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only
troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We
just want to cover everything."29 (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of the
Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a
majority of the votes cast in a national referendum being unnecessary since Congress has not required
it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of
the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly
concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be "duly concurred in by the Senate," it is very true however that said provision
must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a
two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated
in isolation to section 21, Article, VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the
Senate favorably vote to concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite number
of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made, 31 will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall
now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the
United States of America.

Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII, means
that the VFA should have the advice and consent of the United States Senate pursuant to its own
constitutional process, and that it should not be considered merely an executive agreement by the
United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the
VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as
a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be
accepted as a treaty by the United States.

This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty.32 To require the other contracting state, the
United States of America in this case, to submit the VFA to the United States Senate for concurrence
pursuant to its Constitution,33 is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use. 34

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. 35 To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular
designation."36 There are many other terms used for a treaty or international agreement, some of which
are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out
that the names or titles of international agreements included under the general term treaty have little
or no legal significance. Certain terms are useful, but they furnish little more than mere description. 37

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms, or to the meanings
which may be given to them in the internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers.38 International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations. 39
In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,40 we had
occasion to pronounce:

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

"x x x x x x x x x

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

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening
and highly-instructive:

"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to
make it a treaty, then as far as we are concerned, we will accept it as a treaty." 41

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the VFA. 42 For
as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty, there is indeed marked compliance with the
mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. 43 A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation. 44

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to
the ratification.45

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes
between the Philippines and the United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II of the Constitution,46 declares that the Philippines adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
the conduct of its international relations. While the international obligation devolves upon the state and
not upon any particular branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision of its government or any
official thereof. As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation. 47 Hence, we cannot readily
plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty." 48

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle
of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.49

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties.
Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases
impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and referring
the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law. 50
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief
architect of the nation’s foreign policy; his "dominance in the field of foreign relations is (then)
conceded."51 Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."52

As regards the power to enter into treaties or international agreements, the Constitution vests the same
in the President, subject only to the concurrence of at least two-thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation
the Senate cannot intrude, and Congress itself is powerless to invade it.53 Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a
treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the
sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.

It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same to
the Senate for concurrence, acted within the confines and limits of the powers vested in him by the
Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and
in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse
of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the
President in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing so, the
President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the
President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating to
national security, it has not altogether done away with political questions such as those which arise in
the field of foreign relations.54 The High Tribunal’s function, as sanctioned by Article VIII, Section 1, "is
merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing… (of) grave
abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its
corrective power…It has no power to look into what it thinks is apparent error." 55

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of
its discretion and acting within the limits of such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character; 57 the Senate, as an
independent body possessed of its own erudite mind, has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal,
yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a democratic government
such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a
healthy system of checks and balances indispensable toward our nation’s pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as
the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without
power to conduct an incursion and meddle with such affairs purely executive and legislative in character
and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and
bounds within which each of the three political branches of government may exercise the powers
exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and
De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner, Sen.
J.R. Salonga.

Footnotes

1 
Article V. 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 measure necessary to restore and maintain
international peace and security.

2 
Joint Report of the Senate Committee on Foreign Relation and the Committee on National
Defense and Security on the Visiting Forces Agreement.

3 
Joint Committee Report.

4 
Petition, G.R. No. 138698, Annex "B", Rollo, pp. 61-62.
"INSTRUMENT OF RATIFICATION

TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

KNOW YE, that whereas, the Agreement between the government of the Republic of the
Philippines and the Government of the United States of America Regarding the
Treatment of the United States Armed Forces Visiting the Philippines, hereinafter
referred to as VFA, was signed in Manila on 10 February 1998;

WHEREAS, the VFA is essentially a framework to promote bilateral defense cooperation

between the Republic of the Philippines and the United States of America and to give
substance to the 1951 RP-US Mutual Defense Treaty (RP-US MDT). To fulfill the
objectives of the RP-US MDT, it is necessary that regular joint military exercises are
conducted between the Republic of the Philippines and the United States of America;

WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct of
combined military exercises between the Philippines and the United States armed
forces to ensure interoperability of the RP-US MDT;

WHEREAS, in particular, the VFA provides the mechanism for regulating the
circumstances and conditions under which US armed forces and defense personnel may
be present in the Philippines such as the following inter alia:

(a) specific requirements to facilitate the admission of United States personnel

and their departure from the Philippines in connection with activities covered by
the agreement;

(b) clear guidelines on the prosecution of offenses committed by any member of

the United States armed forces while in the Philippines;

(c) precise directive on the importation and exportation of 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 covered by the Agreement; and

(d) explicit regulations on the entry of United States vessels, aircraft, and
vehicles;

WHEREAS, Article IX of the Agreement provides that it shall enter into force on the date
on which the Parties have notified each other in writing, through diplomatic channels,
that they have completed their constitutional requirements for its entry into force. It
shall remain in force until the expiration of 180 days from the date on which either Party
gives the other Party written notice to terminate the Agreement.

NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President of the

Republic of the Philippines, after having seen and considered the aforementioned
Agreement between the Government of the United States of America Regarding the
 Treatment of the United States Armed Forces Visiting the Philippines, do hereby ratify
and confirm the same and each and every Article and Clause thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

GIVEN under my hand at the City of Manila, this 5th day of October, in the year of Our
Lord one thousand nine hundred and ninety-eight.

5 
Petition, G.R. No. 138587, Annex "C", Rollo, p. 59.

The Honorable Senate President and

Member of the Senate
Senate of the Philippines
Pasay City

Gentlemen and Ladies of the Senate:

I have the honor to transmit herewith the Instrument of Ratification duly signed by H.E.
President Joseph Ejercito Estrada, his message to the Senate and a draft Senate
Resolution of Concurrence in connection with the ratification of the AGREEMENT
BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE
GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE TREATMENT OF
THE UNITED STATES ARMED FORCES VISITING THE PHILIPPINES.

With best wishes.

Very truly yours,

RONALDO B. ZAMORA
Executive Secretary

6 
Petition, G.R. No. 138698, Annex "C".

7 
Between January 26 and March 11, 1999, the two Committees jointly held six public hearings-
three in Manila and one each in General Santos, Angeles City and Cebu City.

8 
Petition , G.R. No. 138570, Annex "C", Rollo, pp. 88-95.

"WHEREAS, the VFA is essentially a framework for promoting the common security
interest of the two countries; and for strengthening their bilateral defense partnership
under the 1951 RP-US Mutual Defense Treaty;

"x x x x x x x x x

"WHEREAS, the VFA does not give unrestricted access or unhampered movement to US
Forces in the Philippines; in fact, it recognizes the Philippine government as the sole
authority to approve the conduct of any visit or activity in the country by US Forces,
hence the VFA is not a derogation of Philippine sovereignty;

"WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the
restoration of the American bases and facilities in the Philippines, in contravention of
the prohibition against foreign bases and permanent stationing of foreign troops under
Article XVIII, Section 25 of the 1987 Constitution-because the agreement envisions only
temporary visits of US personnel engaged in joint military exercises or other activities as
may be approved by the Philippine Government;

"WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that may
be committed by US personnel within Philippine territory, with the exception of those
incurred solely against the security or property of the Us or solely against the person or
property of US personnel, and those committed in the performance of official duty;

"x x x x x x x x x

"WHEREAS, by virtue of Article II of the VFA, the United States commits to respect the
laws of the Republic of the Philippines, including the Constitution, which declares in
Article II, Section 8 thereof, a policy of freedom from nuclear weapons consistent with
the national interest;

"WHEREAS, the VFA shall serve as the legal mechanism to promote defense cooperation
between two countries-enhancing the preparedness of the Armed Forces of the
Philippines against external threats; and enabling the Philippines to bolster the stability
of the Pacific area in a shared effort with its neighbor-states;

"WHEREAS, the VFA will enhance our political, economic and security partnership and
cooperation with the United States-which has helped promote the development of our
country and improved the lives of our people;

"WHEREAS, in accordance with the powers and functions of Senate as mandated by the
Constitution, this Chamber, after holding several public hearings and deliberations,
concurs in the President’s ratification of the VFA, for the following reasons:

(1) The Agreement will provide the legal mechanism to promote defense
cooperation between the Philippines and the U.S. and thus enhance the tactical,
strategic, and technological capabilities of our armed forces;

(2) The Agreement will govern the treatment of U.S., military and defense
personnel within Philippine territory, while they are engaged in activities
covered by the Mutual Defense Treaty and conducted with the prior approval of
the Philippine government; and

(3) The Agreement will provide the regulatory mechanism for the circumstances
and conditions under which U.S. military forces may visit the Philippines; x x x
 "x x x x x x x x x

"WHEREAS, in accordance with Article IX of the VFA, the Philippine government reserves
the right to terminate the agreement unilaterally once it no longer redounds to our
national interest: Now, therefore, be it

"Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the
Agreement between the Government of the Republic of the Philippines and the United
States of America Regarding the Treatment of United States Armed Forces visiting the
Philippines. x x x"

9 
The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate
President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon, (5)
Senator Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa Aquino-Oreta, (8)
Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon Magsaysay, Jr., (11)
Senator John Osmeña, (12) Senator Juan Flavier, (13) Senator Mirriam Defensor-Santiago, (14)
Senator Juan Ponce-Enrile, (15) Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17)
Senator Anna Dominique Coseteng, and (18) Senator Gregorio Honasan.

Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto
Guingona, Jr., (2) Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino
Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.

10 
See Petition, G.R. No. 138570, Rollo, pp. 105.

11 
Minute Resolution dated June 8, 1999.

12 
See Consolidated Comment.

13 
Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

14 
Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22,
1987, cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs.
COMELEC, 289 SCRA 337, 343 [1998]; Valley Forge College vs. Americans United, 454 US 464, 70
L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251-252 [1989];
Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].

15 
See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

16 
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197 SCRA
771 [1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95 SCRA 392
[1980]; Gonzales vs. Marcos, 65 SCRA 624 [1975].

17 
176 SCRA 240, 251-252 [1989].

18 
235 SCRA 506 [1994].
19 
Consolidated Memorandum, p. 11.

20 
Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs. Feliciano,
121 Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil. 894 [1965].

21 
21 SCRA 774 [1967].

22 
180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110 [1994].

23 
197 SCRA 52, 60 [1991].

24 
232 SCRA 110 [1994].

25 
J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].

26 
Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.

27 
157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].

28 
Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

29 
Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

30 
1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four
Senators who shall be elected at large by the qualified voters of the Philippines, as may be
provided by law.

31 
The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in 2001
was elected Vice-President in the 1998 national elections.

32 
Ballentine’s Legal Dictionary, 1995.

33 
Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United
States President provides: "He shall have power, by and with the advice and consent of the
Senate to make treaties, provided two-thirds of the senators present concur."

34 
J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

35 
Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago,
International Law, 1998 Ed. P. 497.

36 
Vienna Convention, Article 2.

37 
Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th Ed.,
p. 480.
38 
Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association
Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].

39 
Richard J. Erickson, "The Making of Executive Agreements by the United States Department of
Defense: An agenda for Progress," 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of
Foreign Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the Law
of Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in Consolidated
Memorandum, p. 32.

40 
3 SCRA 351, 356-357 [1961].

41 
4 Record of the Constitutional Commission 782 [Session of September 18, 1986].

42 
Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

"Dear Senator Santiago:

I am happy to respond to your letter of April 29, concerning the way the US Government
views the Philippine-US Visiting Forces Agreement in US legal terms. You raise an
important question and I believe this response will help in the Senate deliberations.

As a matter of both US and international law, an international agreement like the

Visiting Forces Agreement is legally binding on the US Government, In international legal
terms, such an agreement is a ‘treaty.’ However, as a matter of US domestic law, an
agreement like the VFA is an ‘executive agreement,’ because it does not require the
advice and consent of the senate under Article II, section 2 of our Constitution.

The President’s power to conclude the VFA with the Philippines, and other status of
forces agreements with the other countries, derives from the President’s responsibilities
for the conduct of foreign relations (Art. II, Sec. 1) and his constitutional powers as
Commander in Chief of the Armed Forces. Senate advice and consent is not needed,
inter alia, because the VFA and similar agreements neither change US domestic nor
require congressional appropriation of funds. It is important to note that only about five
percent of the international agreement entered into by the US Governments require
Senate advice and consent. However, in terms of the US Government’s obligation to
adhere to the terms of the VFA, there is no difference between a treaty concurred in by
our Senate and an executive agreement. Background information on these points can be
found in the ‘Restatement 3rd of the Foreign Relations Law of the United States,’ Sec.
301, et seq. [1986].

I hope you find this answer helpful. As the President’s representative to the
Government of the Philippines, I can assure you that the United States Government is
fully committed to living up to the terms of the VFA.

Sincerely yours,
 THOMAS C. HUBBARD
Ambassador"

43 
Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th Ed.,
p. 486.

44 
Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational Law,
1998 Ed., pp. 506-507.

45 
Cruz, Isagani, "International Law", 1985 Ed., p. 175.

46 
Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation, and amity with all nations.

47 
Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and
Materials, 2nd Ed American Casebook Series, p. 136.

48 
Gerhard von Glah, supra, p. 487.

49 
Harris, p. 634 cited in Coquia, International Law, supra, p. 512.

50 
Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb 23, 2000
citing Arroyo vs. De Venecia, 277 SCRA 268 [1997].

51 
Cortes, "The Philippine Presidency a study of Executive Power, 2nd Ed.," p. 195.

52 
Cruz, Phil. Political Law, 1995 Ed., p. 223.

53 
United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland.

54 
Arroyo vs. De Venecia, 277 SCRA 269 [1997].

55 
Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991); Llamas vs.
Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481 [1971].

56 
1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and referendum.

57 
See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen and
Unwin) 5th ed., p. 45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

The Lawphil Project - Arellano Law Foundation

 DISSENTING OPINION

PUNO, J.:

The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General, they are:

"I

DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR LEGISLATORS?

II

IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE CONSTITUTION?

III

IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION 25, ARTICLE XVIII
OF THE CONSTITUTION?

IV

DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY?

(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR AND TRY OFFENSES
COMMITTED BY U.S. MILITARY PERSONNEL?

(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE

BY RECLUSION PERPETUA OR HIGHER?

(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA UNCONSTITUTIONAL?

DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III OF THE
CONSTITUTION?

VI

IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSITUTION VIOLATED BY THE VFA?

VII

ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS AND DAMAGES?

VIII

WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE VFA?
 IX

DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER SECTION 7, ARTICLE II OF THE
CONSTITUTION?

IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED OR UNCERTAIN?"

I like to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates Sec.
25, Art. XVIII of the Constitution. I shall therefore limit my opinion on this jugular issue.

The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:

"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."

This provision lays down three constitutional requisites that must be complied with before foreign
military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence
should be allowed by a treaty duly concurred in by the Philippine Senate; (2) 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.

To start with, respondents, with unrelenting resolve, claim that these constitutional requirements are
not applicable to the VFA. They contend that the VFA, as its title implies, contemplates
merely temporary visits of U.S. military troops in Philippine territory, and thus does not come within the
purview of Sec. 25, Art. XVIII of the Constitution. They assert that this constitutional provision applies
only to the stationing or permanent presence of foreign military troops on Philippine soil since the word
"troops" is mentioned along with "bases" and "facilities" which are permanent in nature. 1 This assertion
would deserve serious attention if the temporary nature of these visits were indeed borne out by the
provisions of the VFA. If we turn, however, a heedful eye on the provisions of the VFA as well as the
interpretation accorded to it by the government officials charged with its negotiation and
implementation, the temporary nature of the visits would turn out to be a mirage in a desert of vague
provisions of the VFA. Neither the VFA nor the Mutual Defense Treaty between the Republic of the
Philippines and the United States of America 2 to which the VFA refers in its preamble, 3 provides the
slightest suggestion on the duration of visits of U.S. forces in Philippine territory. The joint public
hearings on the VFA conducted by the Senate Committee on Foreign Relations and the Senate
Committee on National Defense and Security give us a keyhole to the time frame involved in these visits.

Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the VFA, testified before the
said committees that even before the signing of the VFA, Philippine and U.S. troops conducted joint
military exercises in Philippine territory for two days to four weeks at the frequency of ten to twelve
exercises a year. The "Balikatan", the largest combined military exercise involving about 3,000 troops,
lasted at an average of three to four weeks and occurred once every year or one and a half years. 4 He
further declared that the VFA contemplates the same time line for visits of U.S. troops, but argued that
even if these troops conduct ten to twelve exercises a year with each exercise lasting for two to three
weeks, their stay will not be uninterrupted, hence, not permanent. 5 Secretary of National Defense
Orlando S. Mercado further testified that the VFA will allow joint military exercises between the
Philippine and U.S. troops on a larger scale than those we had been undertaking since 1994. 6 As the joint
military exercises will be conducted on a larger scale, it would be reasonable to project an escalation of
the duration as well as frequency of past joint military exercises between Philippine and U.S. troops.

These views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not
provide for a specific and limited period of effectivity. It instead provides an open-ended term in Art.
IX, viz: ". . . (t)his agreement shall remain in force until the expiration of 180 days from the date on
which either party gives the other party notice in writing that it desires to terminate the agreement." No
magic of semantics will blur the truth that the VFA could be in force indefinitely. The following
exchange between Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the public hearings on the
VFA is apropos to the issue:

"SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to last only within one year,
for example, the various visits, but can cover eternity until the treaty is abrogated?

MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our national security, and until
conditions are such that there is no longer a possible threat to our national security, then you will have
to continue exercising, Your Honor, because we cannot take a chance on it.

SEN. PIMENTEL. So, this will be temporarily permanent, or permanently temporary?

MR. SIAZON. Permanently temporary, Your Honor." 7

The worthiest of wordsmiths cannot always manipulate the meaning of words. Black’s Law Dictionary
defines "temporary" as "that which is to last for a limited time only, as distinguished from that which is
perpetual or indefinite in its duration"8 and states that "permanent" is "generally opposed to
‘temporary’ but not always meaning perpetual." 9 The definitions of "temporary" and "permanent" in
Bouvier’s Law Dictionary are of similar import: temporary is "that which is to last for a limited
time"10 while permanent "does not always embrace the idea of absolute perpetuity." 11 By these
definitions, even the contingency that the Philippines may abrogate the VFA when there is no longer any
threat to our national security does not make the visits of U.S. troops temporary, nor do short
interruptions in or gaps between joint military exercises carve them out from the definition of
"permanent" as permanence does not necessarily contemplate absolute perpetuity.

It is against this tapestry woven from the realities of the past and a vision of the future joint military
exercises that the Court must draw a line between temporary visits and permanent stay of U.S.
troops. The absence in the VFA of the slightest suggestion as to the duration of visits of U.S. troops in
Philippine territory, coupled with the lack of a limited term of effectivity of the VFA itself justify the
interpretation that the VFA allows permanent, not merely temporary, presence of U.S. troops on
Philippine soil. Following Secretary Siazon’s testimony, if the visits of U.S. troops could last for four
weeks at the most and at the maximum of twelve times a year for an indefinite number of years, then by
no stretch of logic can these visits be characterized as temporary because in fact, the U.S. troops could
be in Philippine territory 365 days a year for 50 years -- longer than the duration of the 1947 RP-US
Military Bases Agreement12 which expired in 1991 and which, without question, contemplated
permanent presence of U.S. bases, facilities, and troops.

To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same public hearings that
the subject matter of the VFA, i.e., the visits and activities of U.S. troops in Philippine territory, partakes
of a permanent character. He declared with clarity:

"MR. CUEVAS. . . . Why we considered this as a treaty is because the subject therein treated had some
character of permanence; and secondly, there is a change insofar as some of our laws are concerned." 13

Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates permanent presence of
foreign military troops alone, or temporary presence as well, the VFA comes within its purview as it
allows the permanent presence of U.S. troops on Philippine soil. Contrary to respondents’ allegation, the
determination of the permanent nature of visits of U.S. troops under the VFA is an issue ripe for
adjudication since Sec. 25 of Art. XVIII speaks of the manner by which U.S. troops may be allowed to
enter Philippine territory. We need not wait and see, therefore, whether the U.S. troops will actually
conduct military exercises on Philippine soil on a permanent basis before adjudicating this issue. What is
at issue is whether the VFA allows such permanent presence of U.S. troops in Philippine territory.

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 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.14 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.15 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 contracting party." In plain
language, recognition of the United States as the other contracting party of the VFA should be by the
U.S. President with the advice and consent of the U.S. Senate.16 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 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 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."

xxx

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.

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.

xxx
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." (emphasis supplied)17

In ascertaining the VFA’s compliance with the constitutional requirement that it be "recognized as a
treaty by the other contracting state," it is crystal clear from the above exchanges of the Constitutional
Commissioners that the yardstick should be U.S. constitutional law. It is therefore apropos to make a
more in depth study of the U.S. President’s power to enter into executive agreements under U.S.
constitutional law.

Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators
present concur." The U.S. Constitution does not define "treaties". Nevertheless, the accepted definition
of a "treaty" is that of "an agreement between two or more states or international organizations that is
intended to be legally binding and is governed by international law." 18 Although the United States did
not formally ratify the Vienna Convention on the Law of Treaties, its definition of a treaty has been
applied by U.S. courts and the State Department has stated that the Vienna Convention represents
customary international law.19 The Vienna Convention defines a treaty as "an international agreement
concluded between States in written form and governed by international law." 20 It has been observed
that this definition is broader than the sense in which "treaty" is used in the U.S. Constitution. In U.S.
practice, a "treaty" is only one of four types of international agreements, namely: Article II treaties,
executive agreements pursuant to a treaty, congressional-executive agreements, and sole executive
agreements.21

The term "executive agreement" is used both colloquially and in scholarly and governmental writings as
a convenient catch-all to subsume all international agreements intended to bind the United States and
another government, other than those which receive consent of two-thirds of the U.S. Senate. 22 The U.S.
Constitution does not expressly confer authority to make these executive agreements, hence the
authority to make them, their scope, and legal force have been the subject of a long-ongoing
debate.23 This, notwithstanding, executive agreements have grown to be a primary instrument of
foreign policy in the United States. In 1789-1839, the United States concluded 60 treaties and only 27
executive agreements. In 1930-1939, the United States entered into 142 treaties and 144 executive
agreements. In 1940-1949, 116 treaties and 919 executive agreements were concluded by the United
States. From 1980-1988, the United States entered into 136 treaties and 3,094 executive agreements. In
sum, by 1988, there were 12,778 executive agreements as opposed to 1,476 treaties, accounting for
about 90% of the international agreements concluded by the United States. 24

The upsurge in the use of executive agreements in the post World War II period may be attributed to
several factors. President Franklin Roosevelt set a precedent for the more recent presidents by, for
instance, completing the Destroyer-for-Bases deal of 1940 with an executive agreement. President Harry
S. Truman likewise concluded the Potsdam Agreement by executive agreement. The U.S. Presidents also
committed military missions in Honduras and El Salvador in the 1950’s; pledged security to Turkey, Iran,
and Pakistan; acquired permission from the British to use the island of Diego Garcia for military
purposes in the 1960’s; and established a military mission in Iran in 1974, all by way of executive
agreements.25 U.S. Supreme Court decisions affirming the validity of executive agreements have also
contributed to the explosive growth in their usage. 26 Another factor that accelerated its use was the
foreign policy cooperation between Congress and the executive as expressed in the postwar refrain that
"politics must end at the water’s edge."27 The fourth factor is the expansion of executive institutions
including foreign policy machinery and information. 28 The fifth factor is the Cold War which put the
United States in a "constant state of emergency" which required expediency in decisions and actions
regarding the use of force or diplomacy. Last but not the least, the nuclear weapons race and
instantaneous global communication made centralized foreign policy machinery under the U.S.
President necessary.29

These executive agreements which have grown to be the primary instrument of U.S. foreign policy
may be classified into three types, namely:

(1) Treaty-authorized executive agreements, i.e., agreements made by the President pursuant to

authority conferred in a prior treaty; 30

(2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the President with

prior Congressional authorization or enactment or (b) confirmed by both Houses of Congress after the
fact of negotiation;31 and

(3) Presidential or sole executive agreements, i.e., agreements made by the President based on his
exclusive presidential powers, such as the power as commander-in-chief of the armed forces pursuant
to which he conducts military operations with U.S. allies, or his power to receive ambassadors and
recognize foreign governments.32

This classification is important as the different types of executive agreements bear distinctions in
terms of constitutional basis, subject matter, and legal effects in the domestic arena. For
instance, treaty-authorized executive agreements do not pose constitutional problems as they are
generally accepted to have been pre-approved by the Senate when the Senate consented to the treaty
which authorized the executive to enter into executive agreements; another view supporting its
acceptance is that the Senate delegated to the President the authority to make the executive
agreement.33 In comparison, the constitutionality of congressional-executive agreements has provoked
debate among legal scholars. One view, espoused by interpretivists such as Edwin Borchard, holds that
all international agreements must be strictly in accordance with Sec. 2, Art. II of the U.S. Constitution,
and thus congressional-executive agreements are constitutionally invalid. According to them, allowing
congressional-executive agreements would enhance the power of the President as well as of the House
of Representatives, in utter violation of the intent of the framers of the U.S. Constitution. 34 The opposite
school of thought, led by Myer S. McDougal and Asher Lans, holds that congressional-executive
agreements and treaties are interchangeable, thus, such agreements are constitutional. These non-
interpretivists buttress their stance by leaning on the constitutional clause that prohibits States, without
consent of Congress, from "enter(ing) into any Agreement or Compact with another State, or with a
Foreign Power." By making reference to international agreements other than treaties, these scholars
argue that the framers of the Constitution intended international agreements, other than treaties, to
exist. This school of thought generally opposes the "mechanical, filiopietistic theory, (which) purports to
regard the words of the Constitution as timeless absolutes" 35 and gives emphasis to the necessity and
expediency of congressional-executive agreements in modern foreign affairs. 36 Finally, sole executive
agreements which account for a relatively small percentage of executive agreements are the most
constitutionally problematic since the system of checks and balances is inoperative when the President
enters into an executive agreement with neither the Senate’s or Congress’ consent. This last type of
executive agreement draws authority upon the President’s enumerated powers under Article II of the
U.S. Constitution, such as the President’s power as Commander-in-Chief of the U.S. army and navy. 37
I respectfully submit that, using these three types of executive agreements as bases for classification,
the VFA would not fall under the category of an executive agreement made by the president pursuant to
authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense
Treaty in its Preamble,38 the Mutual Defense Treaty itself does not confer authority upon the U.S.
President to enter into executive agreements in implementation of the Treaty. Issues have occasionally
arisen about whether an executive agreement was entered into pursuant to a treaty. These issues,
however, involved mere treaty interpretation. 39 In Wilson v. Girard, 354 US 524 (1957), the U.S.
Supreme Court had occasion to interpret Art. III of the Security Treaty Between the United States of
America and Japan which stated that, "(t)he conditions which shall govern the disposition of armed
forces of the United States of America in and about Japan shall be determined by administrative
agreements between the two Governments." 40 Pursuant to this provision in the treaty, the executive
entered into an administrative agreement covering, among other matters, jurisdiction of the United
States over offenses committed in Japan by members of the U.S. armed forces. The U.S. Supreme Court
recognized the validity of the Administrative Agreement as it was concluded by the President pursuant
to the authority conferred upon him by Art. III of the Security Treaty between Japan and the United
States to make administrative agreements between the two governments concerning "(t)he conditions
which shall govern the disposition of armed forces of the United States of America in and about Japan."

Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual Defense Treaty which
provides that, "(i)n 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."41 The alleged authorization is not as direct and unequivocal as Art. III of the
Security Treaty Between the U.S. and Japan, hence it would be precarious to assume that the VFA
derives authorization from the Mutual Defense Treaty. The precariousness is heightened by the fact that
when the U.S. Senate ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding
the Status of Their Forces42 which was concluded pursuant to the North Atlantic Treaty (NATO), 43 the
Senate included in its instrument of ratification statements on matters of jurisdiction over U.S. forces
stationed abroad, among which was an admonition that the Agreement’s provisions on criminal
jurisdiction which have similar features as the VFA, do not constitute a precedent for future agreements.
We can reasonably gather from the U.S. Senate’s statements that criminal jurisdiction over U.S. forces
stationed abroad is a matter of Senate concern, and thus Senate authorization for the President to enter
into agreements touching upon such jurisdictional matters cannot so easily be assumed.

Neither does the VFA fall under the category of a Congressional-Executive Agreement as it was not
concluded by the U.S. President pursuant to Congressional authorization or enactment nor has it been
confirmed by the U.S. Congress.

At best, the VFA would be more akin to a sole or presidential executive agreement which would be
valid if concluded on the basis of the U.S. President’s exclusive power under the U.S. Constitution.
Respondents argue that except for the Status of Forces Agreement (SOFA) entered into pursuant to the
NATO, the United States, by way of executive agreements, has entered into 78 Status of Forces
Agreements (SOFA) which extend privileges and immunities to U.S. forces stationed abroad, 44 similar to
the provisions of the VFA. Respondents have failed, however, to qualify whether these executive
agreements are sole executive agreements or were concluded pursuant to Congressional authorization
or were authorized by treaty. This detail is important in view of the above discussion on the sense of the
Senate on criminal jurisdiction over U.S. forces stationed abroad.
It will contribute to the elucidation of the legal status of the VFA under U.S. law if we compare the legal
force of sole executive agreements and of treaties. Under international law, treaties and executive
agreements equally bind the United States. 45 If there is any distinction between treaties and executive
agreements, it must be found in U.S. constitutional law. 46 The distinctions, if any, between the legal
force of treaties and executive agreements on the domestic plane may be treated on three levels,
namely, vis-a-vis: (1) state law; (2) acts of Congress and treaties; and (3) the U.S. Constitution.

The Supremacy Clause of the U.S. Constitution provides:

"This Constitution, and the Law of the United States which shall be made in pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." 47

It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over
state law. Thus, the Warsaw Convention to which the United States is a signatory preempts the
California law on airline liability.48 The U.S. Supreme Court has ruled in unmistakable terms that a treaty
enjoys supremacy over state law, viz:

"Plainly, the external powers of the United States are to be exercised without regard to state laws or
policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr.
Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as
they contravene its operation, the treaty would be ineffective. "To counter-act it by the supremacy of
the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3
Elliot, Debates, 515. . . . this rule in respect of treaties is established by the express language of cl. 2,
Art. 6, of the Constitution. . . ."(emphasis supplied)49

It is also generally conceded that sole executive agreements are supreme over state law and policy.
Two cases decided by the U.S. Supreme Court support this view.

The first of these two cases, United States v. Belmont,50 involved the Litvinov Assignment, a sole
executive agreement executed between the United States and the Soviet Government. In 1918, the
Soviet government, by laws and decrees, nationalized, among others, a Russian corporation, and
appropriated its assets including a sum of money deposited with Belmont, a private banker doing
business in New York. The sum of money remained Russian property until 1933, at which time the Soviet
government released and assigned to the United States all amounts due the Soviet government from
American nationals, including the deposit account of the Russian corporation with Belmont. The
assignment, better known as the Litvinov Assignment, was effected by an exchange of diplomatic
correspondence between the Soviet government and the United States to bring about a final settlement
of the claims and counter-claims between the Soviet government and the United States. Coincident with
the assignment, the U.S. President recognized the Soviet Government and normal diplomatic relations
were established between the two governments. 51

Upon demand duly made by the United States, the executors of Belmont’s will failed and refused to pay
the sum of money deposited by the Russian corporation with Belmont. The United States thus filed a
suit in a federal district court to recover the sum of money. The court below held that the situs of the
bank deposit was within the State of New York and not within Soviet territory. Thus, the nationalization
decree, if enforced, would amount to an act of confiscation which was contrary to the controlling public
policy of New York. The U.S. Supreme Court, however, held that no state policy could prevail against
the Litvinov Assignment.52 It ruled as follows:

"The assignment and the agreements in connection therewith did not, as in the case of treaties, as that
term is used in the treaty making clause of the Constitution (Sec. 2, Art. 2), require the advice and
consent of the Senate.

A treaty signifies "a compact made between two or more independent nations with a view to the public
welfare." B. Altman & Co. v. United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct. 593. But an
international compact, as this was, is not always a treaty which requires the participation of the
Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and
agreements like that now under consideration are illustrations." (emphasis supplied) 53

On the supremacy of executive agreements over state law, it ruled as follows:

"Plainly, the external powers of the United States are to be exercised without regard to state laws or
policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr.
Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as
they contravene its operation, the treaty would be ineffective. "To counter-act it by the supremacy of
the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3
Elliot, Debates, 515. . . And while this rule in respect of treaties is established by the express language of
cl. 2, Art. 6, of the Constitution, the same rule would result in the case of all international compacts
and agreements from the very fact that complete power over international affairs is in the national
government and is not and cannot be subjected to any curtailment or interference on the part of the
several states." (emphasis supplied)54

The other case, United States v. Pink,55 likewise involved the Litvinov Assignment. The U.S. Supreme
Court here reiterated its ruling in the Belmont case and held that the Litvinov Assignment was an
international compact or agreement having similar dignity as a treaty under the supremacy clause of the
U.S. Constitution.56

While adherents of sole executive agreements usually point to these two cases as bearing judicial
imprimatur of sole executive agreements, the validity of sole executive agreements seems to have been
initially dealt with by the U.S. Supreme Court in 1933 in Monaco v. Mississippi wherein Chief Justice
Hughes stated that, "(t)he National Government, by virtue of its control of our foreign relations is
entitled to employ the resources of diplomatic negotiations and to effect such an international
settlement as may be found to be appropriate, through treaty, agreement of arbitration, or
otherwise."57

Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once again upheld the validity of a
sole executive agreement in Dames & Moore v. Regan.58 This case involved the Algiers Accord, an
executive agreement negotiated and concluded by President Carter and confirmed by President Reagan
to resolve the Iran Hostage Crisis in 1981. That agreement provided, among others, that the United
States and Iran agreed to cancel certain claims between them and to establish a special tribunal to
resolve other claims, including those by U.S. nationals against Iran. The United States also agreed to
close its courts to those claims, as well as to suits by U.S. citizens against the government of Iran for
recovery of damages arising from the Hostage Crisis. Although the agreement was entered into by the
President pursuant to Congressional authorization, the Court found that the President’s action with
regard to claims was not so authorized. Nevertheless, the U.S. Supreme Court, noting the power of
presidents in foreign affairs which includes the power to settle claims, as well as Congressional
acquiescence to such practice, upheld the validity of the Algiers Accord.

Upon the other hand, those opposed to sole executive agreements argue that the pronouncements of
the Court in the Belmont and Pink cases mean that sole executive agreements override state legislation
only when founded upon the President’s constitutional power to recognize foreign governments. 59

While treaties and sole executive agreements have the same legal effect on state law, sole executive
agreements pale in comparison to treaties when pitted against prior inconsistent acts of Congress. The
U.S. Supreme Court has long ago declared that the Constitution mandates that a treaty and an act of
legislation are both "supreme law of the land." As such, no supreme efficacy is given to one over the
other. If the two relate to the same subject matter and are inconsistent, the one later in date will
prevail, provided the treaty is self-executing, 60 i.e., "whenever it operates of itself without aid of
legislation."61 In The Cherokee Tobacco (Boudinot v. United States),62 the U.S. Supreme Court also held
that where there is repugnance between a treaty and an Act of Congress, "(a) treaty may supersede a
prior Act of Congress . . . and an Act of Congress may supersede a prior treaty. . . ." 63 Settled is the rule,
therefore, that a treaty supersedes an earlier repugnant Act of Congress, and an Act of Congress
supersedes an earlier contradictory treaty. 64 As a corollary, a treaty, being placed on the same footing as
an act of legislation,65 can repeal or modify a prior inconsistent treaty.

In the case of sole executive agreements, commentators have been in general agreement that unlike
treaties, sole executive agreements cannot prevail over prior inconsistent federal legislation. Even
proponents of sole executive agreements admit that while a self-executing treaty can supersede a prior
inconsistent statute, it is very doubtful whether a sole executive agreement, in the absence of
appropriate legislation, will be given similar effect. 66 Wallace McClure, a leading proponent of the
interchangeability of treaties and executive agreements, opined that it would be contrary to "the entire
tenor of the Constitution" for sole executive agreements to supersede federal law. 67 The Restatement
(Third) of the Foreign Relations Law of the United States postulates that a sole executive agreement
could prevail at least over state law, and (only) possibly federal law without implementing
legislation.68 Myer S. McDougal and Asher Lans who are staunch advocates of executive agreements also
concede that sole executive agreements will not ordinarily be valid if repugnant to existing legislation. 69

In United States v. Guy W. Capps, Inc.,70 a leading lower court decision discussing the issue of
supremacy of executive agreements over federal legislation, the Fourth Circuit held that, "the executive
agreement was void because it was not authorized by Congress and contravened provisions of a statute
dealing with the very matter to which it related..." 71 The U.S. Supreme Court itself has "intimated that
the President might act in external affairs without congressional authority, but not that he might act
contrary to an Act of Congress."72 The reason for this is that the U.S. President’s power to enter into
international agreements derives from his position as Chief Executive. By Sec. 7, Art. 1 of the U.S.
Constitution, the president does not have power to repeal existing federal laws. Consequently, he
cannot make an indirect repeal by means of a sole executive agreement.73

On the other side of the coin, it is argued, that when the U.S. President enters into a sole executive
agreement pursuant to his exclusive presidential authority in the field of foreign relations, such
agreement may prevail over prior inconsistent federal legislation. 74 In this situation, the doctrine of
separation of powers may permit the U.S. President to disregard the prior inconsistent Act of Congress
as an "unconstitutional invasion of his power."75 However, aside from lacking firm legal support, this
view has to contend with the problem of determining which powers are exclusively executive and which
powers overlap with the powers of Congress. 76

Again, although it is doubtful whether sole executive agreements can supersede prior inconsistent
federal legislation, proponents of sole executive agreements interpret the Pink case to mean that sole
executive agreements are on equal footing with a treaty, having been accorded the status of "law of the
land" under the supremacy clause and the Litvinov Assignment having been recognized to have similar
dignity as a treaty.77 As such, it is opined that a sole executive agreement may supersede a prior
inconsistent treaty. Treaties of the United States have in fact been terminated on several occasions by
the President on his own authority. 78 President Roosevelt terminated at least two treaties under his
independent constitutional powers: the extradition treaty with Greece, in 1933, and the Treaty of
Commerce and Navigation with Japan, in 1939. 79 That sole executive agreements may repeal or
terminate a treaty is impliedly recognized in Charlton v. Kelly80 as follows: "The executive department
having thus elected to waive any right to free itself from the obligation [of the treaty], it is the plain duty
of the court to recognize the obligation. 81

As against the U.S. Constitution, treaties and sole executive agreements are in equal footing as they
are subject to the same limitations. As early as 1870, the U.S. Supreme Court declared that, "a treaty
cannot change the Constitution or be held valid if it be in violation of that instrument." 82 In Missouri v.
Holland,83 it was held that treaties must not violate the Constitution. 84 The U.S. Supreme Court also
discussed the constitutionally implied limitations on the treaty making power in Reid v. Covert,85 where
Justice Black stated that "(n)o agreement with a foreign nation can confer power on the Congress, or
any other branch of Government, which is free from the restraints of the Constitution." 86 He concluded
that the U.S. Constitution provides limits to the acts of the president, the joint action of the president
and the Senate, and consequently limits the treaty making power. 87

There is no dispute that the constitutional limitations relating to treaties also apply to sole executive
agreements. It is well-settled that the due process clause of the Fifth Amendment and other substantive
provisions of the U.S. Constitution constitute limitations on both treaties and executive
agreements.88 Numerous decisions have also held that both treaties and sole executive agreements
cannot contravene private rights protected by the U.S. Constitution. 89

In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S. constitutional
law, with special attention on the legal status of sole executive agreements, I respectfully submit that
the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on
the same constitutional plateau as a treaty. Questions remain and the debate continues on the
constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The
observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the
sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII
of the 1987 Constitution -- "(o)ften the treaty process will be used at the insistence of other parties to an
agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement,
because its constitutional effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and
the people of the United States and make its subsequent abrogation or violation less likely." 90
With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under
U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a
bright line between the dignity and status of a treaty in contrast with a sole executive agreement.
However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty
height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec.
25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military
troops on Philippine soil must be "recognized as a treaty by the other contracting state."

I vote to grant the petitions.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 78742 July 14, 1989

ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO B.

ALARCIO, FELIPE A. GUICO, JR., BERNARDO M. ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T.
GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA, REYNALDO G. ESTRADA, FELISA C. BAUTISTA, ESMENIA J.
CABE, TEODORO B. MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA, FELICISIMA C. ARRESTO,
CONSUELO M. MORALES, BENJAMIN R. SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S.
FERRER, petitioners,
vs.
HONORABLE SECRETARY OF AGRARIAN REFORM, respondent.

G.R. No. 79310 July 14, 1989

ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS, DENNIS JEREZA, HERMINIGILDO
GUSTILO, PAULINO D. TOLENTINO and PLANTERS' COMMITTEE, INC., Victorias Mill District, Victorias,
Negros Occidental, petitioners,
vs.
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN REFORM COUNCIL, respondents.

G.R. No. 79744 July 14, 1989

INOCENTES PABICO, petitioner,
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, HON. JOKER
ARROYO, EXECUTIVE SECRETARY OF THE OFFICE OF THE PRESIDENT, and Messrs. SALVADOR TALENTO,
JAIME ABOGADO, CONRADO AVANCENA and ROBERTO TAAY, respondents.

G.R. No. 79777 July 14, 1989

NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners,

vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and LAND BANK OF THE
PHILIPPINES, respondents.

CRUZ, J.:

In ancient mythology, Antaeus was a terrible giant who blocked and challenged Hercules for his life on
his way to Mycenae after performing his eleventh labor. The two wrestled mightily and Hercules flung
his adversary to the ground thinking him dead, but Antaeus rose even stronger to resume their struggle.
This happened several times to Hercules' increasing amazement. Finally, as they continued grappling, it
dawned on Hercules that Antaeus was the son of Gaea and could never die as long as any part of his
body was touching his Mother Earth. Thus forewarned, Hercules then held Antaeus up in the air, beyond
the reach of the sustaining soil, and crushed him to death.

Mother Earth. The sustaining soil. The giver of life, without whose invigorating touch even the powerful
Antaeus weakened and died.

The cases before us are not as fanciful as the foregoing tale. But they also tell of the elemental forces of
life and death, of men and women who, like Antaeus need the sustaining strength of the precious earth
to stay alive.
"Land for the Landless" is a slogan that underscores the acute imbalance in the distribution of this
precious resource among our people. But it is more than a slogan. Through the brooding centuries, it has
become a battle-cry dramatizing the increasingly urgent demand of the dispossessed among us for a plot
of earth as their place in the sun.

Recognizing this need, the Constitution in 1935 mandated the policy of social justice to "insure the well-
being and economic security of all the people," 1 especially the less privileged. In 1973, the new
Constitution affirmed this goal adding specifically that "the State shall regulate the acquisition,
ownership, use, enjoyment and disposition of private property and equitably diffuse property ownership
and profits." 2 Significantly, there was also the specific injunction to "formulate and implement an
agrarian reform program aimed at emancipating the tenant from the bondage of the soil." 3

The Constitution of 1987 was not to be outdone. Besides echoing these sentiments, it also adopted one
whole and separate Article XIII on Social Justice and Human Rights, containing grandiose but
undoubtedly sincere provisions for the uplift of the common people. These include a call in the following
words for the adoption by the State of an agrarian reform program:

SEC. 4. The State shall, by law, undertake an agrarian reform program founded on the
right of farmers and regular farmworkers, who are landless, to own directly or
collectively the lands they till or, in the case of other farmworkers, to receive a just
share of the fruits thereof. To this end, the State shall encourage and undertake the just
distribution of all agricultural lands, subject to such priorities and reasonable retention
limits as the Congress may prescribe, taking into account ecological, developmental, or
equity considerations and subject to the payment of just compensation. In determining
retention limits, the State shall respect the right of small landowners. The State shall
further provide incentives for voluntary land-sharing.

Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land Reform Code, had already been
enacted by the Congress of the Philippines on August 8, 1963, in line with the above-stated principles.
This was substantially superseded almost a decade later by P.D. No. 27, which was promulgated on
October 21, 1972, along with martial law, to provide for the compulsory acquisition of private lands for
distribution among tenant-farmers and to specify maximum retention limits for landowners.

The people power revolution of 1986 did not change and indeed even energized the thrust for agrarian
reform. Thus, on July 17, 1987, President Corazon C. Aquino issued E.O. No. 228, declaring full land
ownership in favor of the beneficiaries of P.D. No. 27 and providing for the valuation of still unvalued
lands covered by the decree as well as the manner of their payment. This was followed on July 22, 1987
by Presidential Proclamation No. 131, instituting a comprehensive agrarian reform program (CARP), and
E.O. No. 229, providing the mechanics for its implementation.

Subsequently, with its formal organization, the revived Congress of the Philippines took over legislative
power from the President and started its own deliberations, including extensive public hearings, on the
improvement of the interests of farmers. The result, after almost a year of spirited debate, was the
enactment of R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988,
which President Aquino signed on June 10, 1988. This law, while considerably changing the earlier
mentioned enactments, nevertheless gives them suppletory effect insofar as they are not inconsistent
with its provisions. 4
The above-captioned cases have been consolidated because they involve common legal questions,
including serious challenges to the constitutionality of the several measures mentioned above. They will
be the subject of one common discussion and resolution, The different antecedents of each case will
require separate treatment, however, and will first be explained hereunder.

G.R. No. 79777

Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No.
6657.

The subjects of this petition are a 9-hectare riceland worked by four tenants and owned by petitioner
Nicolas Manaay and his wife and a 5-hectare riceland worked by four tenants and owned by petitioner
Augustin Hermano, Jr. The tenants were declared full owners of these lands by E.O. No. 228 as qualified
farmers under P.D. No. 27.

The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on grounds inter alia of
separation of powers, due process, equal protection and the constitutional limitation that no private
property shall be taken for public use without just compensation.

They contend that President Aquino usurped legislative power when she promulgated E.O. No. 228. The
said measure is invalid also for violation of Article XIII, Section 4, of the Constitution, for failure to
provide for retention limits for small landowners. Moreover, it does not conform to Article VI, Section
25(4) and the other requisites of a valid appropriation.

In connection with the determination of just compensation, the petitioners argue that the same may be
made only by a court of justice and not by the President of the Philippines. They invoke the recent cases
of EPZA v. Dulay 5 and Manotok v. National Food Authority. 6 Moreover, the just compensation
contemplated by the Bill of Rights is payable in money or in cash and not in the form of bonds or other
things of value.

In considering the rentals as advance payment on the land, the executive order also deprives the
petitioners of their property rights as protected by due process. The equal protection clause is also
violated because the order places the burden of solving the agrarian problems on the owners only of
agricultural lands. No similar obligation is imposed on the owners of other properties.

The petitioners also maintain that in declaring the beneficiaries under P.D. No. 27 to be the owners of
the lands occupied by them, E.O. No. 228 ignored judicial prerogatives and so violated due process.
Worse, the measure would not solve the agrarian problem because even the small farmers are deprived
of their lands and the retention rights guaranteed by the Constitution.

In his Comment, the Solicitor General stresses that P.D. No. 27 has already been upheld in the earlier
cases of Chavez v. Zobel, 7 Gonzales v. Estrella, 8 and Association of Rice and Corn Producers of the
Philippines, Inc. v. The National Land Reform Council. 9 The determination of just compensation by the
executive authorities conformably to the formula prescribed under the questioned order is at best initial
or preliminary only. It does not foreclose judicial intervention whenever sought or warranted. At any
rate, the challenge to the order is premature because no valuation of their property has as yet been
made by the Department of Agrarian Reform. The petitioners are also not proper parties because the
lands owned by them do not exceed the maximum retention limit of 7 hectares.

Replying, the petitioners insist they are proper parties because P.D. No. 27 does not provide for
retention limits on tenanted lands and that in any event their petition is a class suit brought in behalf of
landowners with landholdings below 24 hectares. They maintain that the determination of just
compensation by the administrative authorities is a final ascertainment. As for the cases invoked by the
public respondent, the constitutionality of P.D. No. 27 was merely assumed in Chavez, while what was
decided in Gonzales was the validity of the imposition of martial law.

In the amended petition dated November 22, 1588, it is contended that P.D. No. 27, E.O. Nos. 228 and
229 (except Sections 20 and 21) have been impliedly repealed by R.A. No. 6657. Nevertheless, this
statute should itself also be declared unconstitutional because it suffers from substantially the same
infirmities as the earlier measures.

A petition for intervention was filed with leave of court on June 1, 1988 by Vicente Cruz, owner of a 1.
83- hectare land, who complained that the DAR was insisting on the implementation of P.D. No. 27 and
E.O. No. 228 despite a compromise agreement he had reached with his tenant on the payment of
rentals. In a subsequent motion dated April 10, 1989, he adopted the allegations in the basic amended
petition that the above- mentioned enactments have been impliedly repealed by R.A. No. 6657.

G.R. No. 79310

The petitioners herein are landowners and sugar planters in the Victorias Mill District, Victorias, Negros
Occidental. Co-petitioner Planters' Committee, Inc. is an organization composed of 1,400 planter-
members. This petition seeks to prohibit the implementation of Proc. No. 131 and E.O. No. 229.

The petitioners claim that the power to provide for a Comprehensive Agrarian Reform Program as
decreed by the Constitution belongs to Congress and not the President. Although they agree that the
President could exercise legislative power until the Congress was convened, she could do so only to
enact emergency measures during the transition period. At that, even assuming that the interim
legislative power of the President was properly exercised, Proc. No. 131 and E.O. No. 229 would still
have to be annulled for violating the constitutional provisions on just compensation, due process, and
equal protection.

They also argue that under Section 2 of Proc. No. 131 which provides:

Agrarian Reform Fund.-There is hereby created a special fund, to be known as the Agrarian Reform
Fund, an initial amount of FIFTY BILLION PESOS (P50,000,000,000.00) to cover the estimated cost of the
Comprehensive Agrarian Reform Program from 1987 to 1992 which shall be sourced from the receipts
of the sale of the assets of the Asset Privatization Trust and Receipts of sale of ill-gotten wealth received
through the Presidential Commission on Good Government and such other sources as government may
deem appropriate. The amounts collected and accruing to this special fund shall be considered
automatically appropriated for the purpose authorized in this Proclamation the amount appropriated is
in futuro, not in esse. The money needed to cover the cost of the contemplated expropriation has yet to
be raised and cannot be appropriated at this time.
Furthermore, they contend that taking must be simultaneous with payment of just compensation as it is
traditionally understood, i.e., with money and in full, but no such payment is contemplated in Section 5
of the E.O. No. 229. On the contrary, Section 6, thereof provides that the Land Bank of the Philippines
"shall compensate the landowner in an amount to be established by the government, which shall be
based on the owner's declaration of current fair market value as provided in Section 4 hereof, but
subject to certain controls to be defined and promulgated by the Presidential Agrarian Reform Council."
This compensation may not be paid fully in money but in any of several modes that may consist of part
cash and part bond, with interest, maturing periodically, or direct payment in cash or bond as may be
mutually agreed upon by the beneficiary and the landowner or as may be prescribed or approved by the
PARC.

The petitioners also argue that in the issuance of the two measures, no effort was made to make a
careful study of the sugar planters' situation. There is no tenancy problem in the sugar areas that can
justify the application of the CARP to them. To the extent that the sugar planters have been lumped in
the same legislation with other farmers, although they are a separate group with problems exclusively
their own, their right to equal protection has been violated.

A motion for intervention was filed on August 27,1987 by the National Federation of Sugarcane Planters
(NASP) which claims a membership of at least 20,000 individual sugar planters all over the country. On
September 10, 1987, another motion for intervention was filed, this time by Manuel Barcelona, et al.,
representing coconut and riceland owners. Both motions were granted by the Court.

NASP alleges that President Aquino had no authority to fund the Agrarian Reform Program and that, in
any event, the appropriation is invalid because of uncertainty in the amount appropriated. Section 2 of
Proc. No. 131 and Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of fifty billion
pesos and thus specifies the minimum rather than the maximum authorized amount. This is not allowed.
Furthermore, the stated initial amount has not been certified to by the National Treasurer as actually
available.

Two additional arguments are made by Barcelona, to wit, the failure to establish by clear and convincing
evidence the necessity for the exercise of the powers of eminent domain, and the violation of the
fundamental right to own property.

The petitioners also decry the penalty for non-registration of the lands, which is the expropriation of the
said land for an amount equal to the government assessor's valuation of the land for tax purposes. On
the other hand, if the landowner declares his own valuation he is unjustly required to immediately pay
the corresponding taxes on the land, in violation of the uniformity rule.

In his consolidated Comment, the Solicitor General first invokes the presumption of constitutionality in
favor of Proc. No. 131 and E.O. No. 229. He also justifies the necessity for the expropriation as explained
in the "whereas" clauses of the Proclamation and submits that, contrary to the petitioner's contention, a
pilot project to determine the feasibility of CARP and a general survey on the people's opinion thereon
are not indispensable prerequisites to its promulgation.

On the alleged violation of the equal protection clause, the sugar planters have failed to show that they
belong to a different class and should be differently treated. The Comment also suggests the possibility
of Congress first distributing public agricultural lands and scheduling the expropriation of private
agricultural lands later. From this viewpoint, the petition for prohibition would be premature.

The public respondent also points out that the constitutional prohibition is against the payment of
public money without the corresponding appropriation. There is no rule that only money already in
existence can be the subject of an appropriation law. Finally, the earmarking of fifty billion pesos as
Agrarian Reform Fund, although denominated as an initial amount, is actually the maximum sum
appropriated. The word "initial" simply means that additional amounts may be appropriated later when
necessary.

On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on his own behalf, assailing the
constitutionality of E.O. No. 229. In addition to the arguments already raised, Serrano contends that the
measure is unconstitutional because:

(1) Only public lands should be included in the CARP;

(2) E.O. No. 229 embraces more than one subject which is not expressed in the title;

(3) The power of the President to legislate was terminated on July 2, 1987; and

(4) The appropriation of a P50 billion special fund from the National Treasury did not
originate from the House of Representatives.

G.R. No. 79744

The petitioner alleges that the then Secretary of Department of Agrarian Reform, in violation of due
process and the requirement for just compensation, placed his landholding under the coverage of
Operation Land Transfer. Certificates of Land Transfer were subsequently issued to the private
respondents, who then refused payment of lease rentals to him.

On September 3, 1986, the petitioner protested the erroneous inclusion of his small landholding under
Operation Land transfer and asked for the recall and cancellation of the Certificates of Land Transfer in
the name of the private respondents. He claims that on December 24, 1986, his petition was denied
without hearing. On February 17, 1987, he filed a motion for reconsideration, which had not been acted
upon when E.O. Nos. 228 and 229 were issued. These orders rendered his motion moot and academic
because they directly effected the transfer of his land to the private respondents.

The petitioner now argues that:

(1) E.O. Nos. 228 and 229 were invalidly issued by the President of the Philippines.

(2) The said executive orders are violative of the constitutional provision that no private
property shall be taken without due process or just compensation.

(3) The petitioner is denied the right of maximum retention provided for under the 1987
Constitution.
The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly before Congress convened is
anomalous and arbitrary, besides violating the doctrine of separation of powers. The legislative power
granted to the President under the Transitory Provisions refers only to emergency measures that may
be promulgated in the proper exercise of the police power.

The petitioner also invokes his rights not to be deprived of his property without due process of law and
to the retention of his small parcels of riceholding as guaranteed under Article XIII, Section 4 of the
Constitution. He likewise argues that, besides denying him just compensation for his land, the provisions
of E.O. No. 228 declaring that:

Lease rentals paid to the landowner by the farmer-beneficiary after October 21, 1972
shall be considered as advance payment for the land.

is an unconstitutional taking of a vested property right. It is also his contention that the inclusion of even
small landowners in the program along with other landowners with lands consisting of seven hectares or
more is undemocratic.

In his Comment, the Solicitor General submits that the petition is premature because the motion for
reconsideration filed with the Minister of Agrarian Reform is still unresolved. As for the validity of the
issuance of E.O. Nos. 228 and 229, he argues that they were enacted pursuant to Section 6, Article XVIII
of the Transitory Provisions of the 1987 Constitution which reads:

The incumbent president shall continue to exercise legislative powers until the first Congress is
convened.

On the issue of just compensation, his position is that when P.D. No. 27 was promulgated on October 21.
1972, the tenant-farmer of agricultural land was deemed the owner of the land he was tilling. The
leasehold rentals paid after that date should therefore be considered amortization payments.

In his Reply to the public respondents, the petitioner maintains that the motion he filed was resolved on
December 14, 1987. An appeal to the Office of the President would be useless with the promulgation of
E.O. Nos. 228 and 229, which in effect sanctioned the validity of the public respondent's acts.

G.R. No. 78742

The petitioners in this case invoke the right of retention granted by P.D. No. 27 to owners of rice and
corn lands not exceeding seven hectares as long as they are cultivating or intend to cultivate the same.
Their respective lands do not exceed the statutory limit but are occupied by tenants who are actually
cultivating such lands.

According to P.D. No. 316, which was promulgated in implementation of P.D. No. 27:

No tenant-farmer in agricultural lands primarily devoted to rice and corn shall be

ejected or removed from his farmholding until such time as the respective rights of the
tenant- farmers and the landowner shall have been determined in accordance with the
rules and regulations implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants and so are unable to enjoy their right of retention
because the Department of Agrarian Reform has so far not issued the implementing rules required
under the above-quoted decree. They therefore ask the Court for a writ of mandamus to compel the
respondent to issue the said rules.

In his Comment, the public respondent argues that P.D. No. 27 has been amended by LOI 474 removing
any right of retention from persons who own other agricultural lands of more than 7 hectares in
aggregate area or lands used for residential, commercial, industrial or other purposes from which they
derive adequate income for their family. And even assuming that the petitioners do not fall under its
terms, the regulations implementing P.D. No. 27 have already been issued, to wit, the Memorandum
dated July 10, 1975 (Interim Guidelines on Retention by Small Landowners, with an accompanying
Retention Guide Table), Memorandum Circular No. 11 dated April 21, 1978, (Implementation Guidelines
of LOI No. 474), Memorandum Circular No. 18-81 dated December 29,1981 (Clarificatory Guidelines on
Coverage of P.D. No. 27 and Retention by Small Landowners), and DAR Administrative Order No. 1,
series of 1985 (Providing for a Cut-off Date for Landowners to Apply for Retention and/or to Protest the
Coverage of their Landholdings under Operation Land Transfer pursuant to P.D. No. 27). For failure to
file the corresponding applications for retention under these measures, the petitioners are now barred
from invoking this right.

The public respondent also stresses that the petitioners have prematurely initiated this case
notwithstanding the pendency of their appeal to the President of the Philippines. Moreover, the
issuance of the implementing rules, assuming this has not yet been done, involves the exercise of
discretion which cannot be controlled through the writ of mandamus. This is especially true if this
function is entrusted, as in this case, to a separate department of the government.

In their Reply, the petitioners insist that the above-cited measures are not applicable to them because
they do not own more than seven hectares of agricultural land. Moreover, assuming arguendo that the
rules were intended to cover them also, the said measures are nevertheless not in force because they
have not been published as required by law and the ruling of this Court in Tanada v. Tuvera.10 As for LOI
474, the same is ineffective for the additional reason that a mere letter of instruction could not have
repealed the presidential decree.

Although holding neither purse nor sword and so regarded as the weakest of the three departments of
the government, the judiciary is nonetheless vested with the power to annul the acts of either the
legislative or the executive or of both when not conformable to the fundamental law. This is the reason
for what some quarters call the doctrine of judicial supremacy. Even so, this power is not lightly
assumed or readily exercised. The doctrine of separation of powers imposes upon the courts a proper
restraint, born of the nature of their functions and of their respect for the other departments, in striking
down the acts of the legislative and the executive as unconstitutional. The policy, indeed, is a blend of
courtesy and caution. To doubt is to sustain. The theory is that before the act was done or the law was
enacted, earnest studies were made by Congress or the President, or both, to insure that the
Constitution would not be breached.

In addition, the Constitution itself lays down stringent conditions for a declaration of unconstitutionality,
requiring therefor the concurrence of a majority of the members of the Supreme Court who took part in
the deliberations and voted on the issue during their session en banc. 11 And as established by judge
made doctrine, the Court will assume jurisdiction over a constitutional question only if it is shown that
the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the
constitutional question must have been opportunely raised by the proper party, and the resolution of
the question is unavoidably necessary to the decision of the case itself. 12

With particular regard to the requirement of proper party as applied in the cases before us, we hold that
the same is satisfied by the petitioners and intervenors because each of them has sustained or is in
danger of sustaining an immediate injury as a result of the acts or measures complained of. 13 And even
if, strictly speaking, they are not covered by the definition, it is still within the wide discretion of the
Court to waive the requirement and so remove the impediment to its addressing and resolving the
serious constitutional questions raised.

In the first Emergency Powers Cases, 14 ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were invoking
only an indirect and general interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that "the transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure." We have since then applied this exception in many other cases. 15

The other above-mentioned requisites have also been met in the present petitions.

In must be stressed that despite the inhibitions pressing upon the Court when confronted with
constitutional issues like the ones now before it, it will not hesitate to declare a law or act invalid when
it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the
Constitution as God and its conscience give it the light to probe its meaning and discover its purpose.
Personal motives and political considerations are irrelevancies that cannot influence its decision.
Blandishment is as ineffectual as intimidation.

For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the
hammer fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments,
or of any public official, betray the people's will as expressed in the Constitution.

It need only be added, to borrow again the words of Justice Laurel, that —

... 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. 16

The cases before us categorically raise constitutional questions that this Court must categorically
resolve. And so we shall.
II

We proceed first to the examination of the preliminary issues before resolving the more serious
challenges to the constitutionality of the several measures involved in these petitions.

The promulgation of P.D. No. 27 by President Marcos in the exercise of his powers under martial law has
already been sustained in Gonzales v. Estrella and we find no reason to modify or reverse it on that
issue. As for the power of President Aquino to promulgate Proc. No. 131 and E.O. Nos. 228 and 229, the
same was authorized under Section 6 of the Transitory Provisions of the 1987 Constitution, quoted
above.

The said measures were issued by President Aquino before July 27, 1987, when the Congress of the
Philippines was formally convened and took over legislative power from her. They are not "midnight"
enactments intended to pre-empt the legislature because E.O. No. 228 was issued on July 17, 1987, and
the other measures, i.e., Proc. No. 131 and E.O. No. 229, were both issued on July 22, 1987. Neither is it
correct to say that these measures ceased to be valid when she lost her legislative power for, like any
statute, they continue to be in force unless modified or repealed by subsequent law or declared invalid
by the courts. A statute does not ipso facto become inoperative simply because of the dissolution of the
legislature that enacted it. By the same token, President Aquino's loss of legislative power did not have
the effect of invalidating all the measures enacted by her when and as long as she possessed it.

Significantly, the Congress she is alleged to have undercut has not rejected but in fact substantially
affirmed the challenged measures and has specifically provided that they shall be suppletory to R.A. No.
6657 whenever not inconsistent with its provisions. 17 Indeed, some portions of the said measures, like
the creation of the P50 billion fund in Section 2 of Proc. No. 131, and Sections 20 and 21 of E.O. No. 229,
have been incorporated by reference in the CARP Law. 18

That fund, as earlier noted, is itself being questioned on the ground that it does not conform to the
requirements of a valid appropriation as specified in the Constitution. Clearly, however, Proc. No. 131 is
not an appropriation measure even if it does provide for the creation of said fund, for that is not its
principal purpose. An appropriation law is one the primary and specific purpose of which is to authorize
the release of public funds from the treasury. 19 The creation of the fund is only incidental to the main
objective of the proclamation, which is agrarian reform.

It should follow that the specific constitutional provisions invoked, to wit, Section 24 and Section 25(4)
of Article VI, are not applicable. With particular reference to Section 24, this obviously could not have
been complied with for the simple reason that the House of Representatives, which now has the
exclusive power to initiate appropriation measures, had not yet been convened when the proclamation
was issued. The legislative power was then solely vested in the President of the Philippines, who
embodied, as it were, both houses of Congress.

The argument of some of the petitioners that Proc. No. 131 and E.O. No. 229 should be invalidated
because they do not provide for retention limits as required by Article XIII, Section 4 of the Constitution
is no longer tenable. R.A. No. 6657 does provide for such limits now in Section 6 of the law, which in fact
is one of its most controversial provisions. This section declares:
 Retention Limits. — Except as otherwise provided in this Act, no person may own or
retain, directly or indirectly, any public or private agricultural land, the size of which
shall vary according to factors governing a viable family-sized farm, such as commodity
produced, terrain, infrastructure, and soil fertility as determined by the Presidential
Agrarian Reform Council (PARC) created hereunder, but in no case shall retention by the
landowner exceed five (5) hectares. Three (3) hectares may be awarded to each child of
the landowner, subject to the following qualifications: (1) that he is at least fifteen (15)
years of age; and (2) that he is actually tilling the land or directly managing the farm;
Provided, That landowners whose lands have been covered by Presidential Decree No.
27 shall be allowed to keep the area originally retained by them thereunder, further,
That original homestead grantees or direct compulsory heirs who still own the original
homestead at the time of the approval of this Act shall retain the same areas as long as
they continue to cultivate said homestead.

The argument that E.O. No. 229 violates the constitutional requirement that a bill shall have only one
subject, to be expressed in its title, deserves only short attention. It is settled that the title of the bill
does not have to be a catalogue of its contents and will suffice if the matters embodied in the text are
relevant to each other and may be inferred from the title. 20

The Court wryly observes that during the past dictatorship, every presidential issuance, by whatever
name it was called, had the force and effect of law because it came from President Marcos. Such are the
ways of despots. Hence, it is futile to argue, as the petitioners do in G.R. No. 79744, that LOI 474 could
not have repealed P.D. No. 27 because the former was only a letter of instruction. The important thing is
that it was issued by President Marcos, whose word was law during that time.

But for all their peremptoriness, these issuances from the President Marcos still had to comply with the
requirement for publication as this Court held in Tanada v. Tuvera. 21 Hence, unless published in the
Official Gazette in accordance with Article 2 of the Civil Code, they could not have any force and effect if
they were among those enactments successfully challenged in that case. LOI 474 was published, though,
in the Official Gazette dated November 29,1976.)

Finally, there is the contention of the public respondent in G.R. No. 78742 that the writ of mandamus
cannot issue to compel the performance of a discretionary act, especially by a specific department of
the government. That is true as a general proposition but is subject to one important qualification.
Correctly and categorically stated, the rule is that mandamus will lie to compel the discharge of the
discretionary duty itself but not to control the discretion to be exercised. In other words, mandamus can
issue to require action only but not specific action.

Whenever a duty is imposed upon a public official and an unnecessary and

unreasonable delay in the exercise of such duty occurs, if it is a clear duty imposed by
law, the courts will intervene by the extraordinary legal remedy of mandamus to compel
action. If the duty is purely ministerial, the courts will require specific action. If the duty
is purely discretionary, the courts by mandamus will require action only. For example, if
an inferior court, public official, or board should, for an unreasonable length of time, fail
to decide a particular question to the great detriment of all parties concerned, or a court
should refuse to take jurisdiction of a cause when the law clearly gave it jurisdiction
 mandamus will issue, in the first case to require a decision, and in the second to require
that jurisdiction be taken of the cause. 22

And while it is true that as a rule the writ will not be proper as long as there is still a plain, speedy and
adequate remedy available from the administrative authorities, resort to the courts may still be
permitted if the issue raised is a question of law. 23

III

There are traditional distinctions between the police power and the power of eminent domain that
logically preclude the application of both powers at the same time on the same subject. In the case
of City of Baguio v. NAWASA, 24 for example, where a law required the transfer of all municipal
waterworks systems to the NAWASA in exchange for its assets of equivalent value, the Court held that
the power being exercised was eminent domain because the property involved was wholesome and
intended for a public use. Property condemned under the police power is noxious or intended for a
noxious purpose, such as a building on the verge of collapse, which should be demolished for the public
safety, or obscene materials, which should be destroyed in the interest of public morals. The
confiscation of such property is not compensable, unlike the taking of property under the power of
expropriation, which requires the payment of just compensation to the owner.

In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes laid down the limits of the police power
in a famous aphorism: "The general rule at least is that while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking." The regulation that went "too far" was
a law prohibiting mining which might cause the subsidence of structures for human habitation
constructed on the land surface. This was resisted by a coal company which had earlier granted a deed
to the land over its mine but reserved all mining rights thereunder, with the grantee assuming all risks
and waiving any damage claim. The Court held the law could not be sustained without compensating the
grantor. Justice Brandeis filed a lone dissent in which he argued that there was a valid exercise of the
police power. He said:

Every restriction upon the use of property imposed in the exercise of the police power
deprives the owner of some right theretofore enjoyed, and is, in that sense, an
abridgment by the State of rights in property without making compensation. But
restriction imposed to protect the public health, safety or morals from dangers
threatened is not a taking. The restriction here in question is merely the prohibition of a
noxious use. The property so restricted remains in the possession of its owner. The state
does not appropriate it or make any use of it. The state merely prevents the owner from
making a use which interferes with paramount rights of the public. Whenever the use
prohibited ceases to be noxious — as it may because of further changes in local or social
conditions — the restriction will have to be removed and the owner will again be free to
enjoy his property as heretofore.

Recent trends, however, would indicate not a polarization but a mingling of the police power and the
power of eminent domain, with the latter being used as an implement of the former like the power of
taxation. The employment of the taxing power to achieve a police purpose has long been accepted. 26 As
for the power of expropriation, Prof. John J. Costonis of the University of Illinois College of Law (referring
to the earlier case of Euclid v. Ambler Realty Co., 272 US 365, which sustained a zoning law under the
police power) makes the following significant remarks:

Euclid, moreover, was decided in an era when judges located the Police and eminent
domain powers on different planets. Generally speaking, they viewed eminent domain
as encompassing public acquisition of private property for improvements that would be
available for public use," literally construed. To the police power, on the other hand,
they assigned the less intrusive task of preventing harmful externalities a point reflected
in the Euclid opinion's reliance on an analogy to nuisance law to bolster its support of
zoning. So long as suppression of a privately authored harm bore a plausible relation to
some legitimate "public purpose," the pertinent measure need have afforded no
compensation whatever. With the progressive growth of government's involvement in
land use, the distance between the two powers has contracted considerably. Today
government often employs eminent domain interchangeably with or as a useful
complement to the police power-- a trend expressly approved in the Supreme Court's
1954 decision in Berman v. Parker, which broadened the reach of eminent domain's
"public use" test to match that of the police power's standard of "public purpose." 27

The Berman case sustained a redevelopment project and the improvement of blighted areas in the
District of Columbia as a proper exercise of the police power. On the role of eminent domain in the
attainment of this purpose, Justice Douglas declared:

If those who govern the District of Columbia decide that the Nation's Capital should be
beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the
way.

Once the object is within the authority of Congress, the right to realize it through the
exercise of eminent domain is clear.

For the power of eminent domain is merely the means to the end. 28

In Penn Central Transportation Co. v. New York City, 29 decided by a 6-3 vote in 1978, the U.S Supreme
Court sustained the respondent's Landmarks Preservation Law under which the owners of the Grand
Central Terminal had not been allowed to construct a multi-story office building over the Terminal,
which had been designated a historic landmark. Preservation of the landmark was held to be a valid
objective of the police power. The problem, however, was that the owners of the Terminal would be
deprived of the right to use the airspace above it although other landowners in the area could do so
over their respective properties. While insisting that there was here no taking, the Court nonetheless
recognized certain compensatory rights accruing to Grand Central Terminal which it said would
"undoubtedly mitigate" the loss caused by the regulation. This "fair compensation," as he called it, was
explained by Prof. Costonis in this wise:

In return for retaining the Terminal site in its pristine landmark status, Penn Central was authorized to
transfer to neighboring properties the authorized but unused rights accruing to the site prior to the
Terminal's designation as a landmark — the rights which would have been exhausted by the 59-story
building that the city refused to countenance atop the Terminal. Prevailing bulk restrictions on
neighboring sites were proportionately relaxed, theoretically enabling Penn Central to recoup its losses
at the Terminal site by constructing or selling to others the right to construct larger, hence more
profitable buildings on the transferee sites. 30

The cases before us present no knotty complication insofar as the question of compensable taking is
concerned. To the extent that the measures under challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for the regulation of private property in accordance
with the Constitution. But where, to carry out such regulation, it becomes necessary to deprive such
owners of whatever lands they may own in excess of the maximum area allowed, there is definitely a
taking under the power of eminent domain for which payment of just compensation is imperative. The
taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of
the title to and the physical possession of the said excess and all beneficial rights accruing to the owner
in favor of the farmer-beneficiary. This is definitely an exercise not of the police power but of the power
of eminent domain.

Whether as an exercise of the police power or of the power of eminent domain, the several measures
before us are challenged as violative of the due process and equal protection clauses.

The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground that no retention limits are
prescribed has already been discussed and dismissed. It is noted that although they excited many bitter
exchanges during the deliberation of the CARP Law in Congress, the retention limits finally agreed upon
are, curiously enough, not being questioned in these petitions. We therefore do not discuss them here.
The Court will come to the other claimed violations of due process in connection with our examination
of the adequacy of just compensation as required under the power of expropriation.

The argument of the small farmers that they have been denied equal protection because of the absence
of retention limits has also become academic under Section 6 of R.A. No. 6657. Significantly, they too
have not questioned the area of such limits. There is also the complaint that they should not be made to
share the burden of agrarian reform, an objection also made by the sugar planters on the ground that
they belong to a particular class with particular interests of their own. However, no evidence has been
submitted to the Court that the requisites of a valid classification have been violated.

Classification has been defined as the grouping of persons or things similar to each other in certain
particulars and different from each other in these same particulars. 31 To be valid, it must conform to the
following requirements: (1) it must be based on substantial distinctions; (2) it must be germane to the
purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally
to all the members of the class. 32 The Court finds that all these requisites have been met by the
measures here challenged as arbitrary and discriminatory.

Equal protection simply means that all persons or things similarly situated must be treated alike both as
to the rights conferred and the liabilities imposed. 33 The petitioners have not shown that they belong to
a different class and entitled to a different treatment. The argument that not only landowners but also
owners of other properties must be made to share the burden of implementing land reform must be
rejected. There is a substantial distinction between these two classes of owners that is clearly visible
except to those who will not see. There is no need to elaborate on this matter. In any event, the
Congress is allowed a wide leeway in providing for a valid classification. Its decision is accorded
recognition and respect by the courts of justice except only where its discretion is abused to the
detriment of the Bill of Rights.
It is worth remarking at this juncture that a statute may be sustained under the police power only if
there is a concurrence of the lawful subject and the lawful method. Put otherwise, the interests of the
public generally as distinguished from those of a particular class require the interference of the State
and, no less important, the means employed are reasonably necessary for the attainment of the
purpose sought to be achieved and not unduly oppressive upon individuals. 34 As the subject and
purpose of agrarian reform have been laid down by the Constitution itself, we may say that the first
requirement has been satisfied. What remains to be examined is the validity of the method employed to
achieve the constitutional goal.

One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that a, person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the rest of the nation who would
deny him that right.

That right covers the person's life, his liberty and his property under Section 1 of Article III of the
Constitution. With regard to his property, the owner enjoys the added protection of Section 9, which
reaffirms the familiar rule that private property shall not be taken for public use without just
compensation.

This brings us now to the power of eminent domain.

IV

Eminent domain is an inherent power of the State that enables it to forcibly acquire
private lands intended for public use upon payment of just compensation to the owner.
Obviously, there is no need to expropriate where the owner is willing to sell under terms
also acceptable to the purchaser, in which case an ordinary deed of sale may be agreed
upon by the parties. 35 It is only where the owner is unwilling to sell, or cannot accept
the price or other conditions offered by the vendee, that the power of eminent domain
will come into play to assert the paramount authority of the State over the interests of
the property owner. Private rights must then yield to the irresistible demands of the
public interest on the time-honored justification, as in the case of the police power, that
the welfare of the people is the supreme law.

But for all its primacy and urgency, the power of expropriation is by no means absolute (as indeed no
power is absolute). The limitation is found in the constitutional injunction that "private property shall
not be taken for public use without just compensation" and in the abundant jurisprudence that has
evolved from the interpretation of this principle. Basically, the requirements for a proper exercise of the
power are: (1) public use and (2) just compensation.

Let us dispose first of the argument raised by the petitioners in G.R. No. 79310 that the State should first
distribute public agricultural lands in the pursuit of agrarian reform instead of immediately disturbing
property rights by forcibly acquiring private agricultural lands. Parenthetically, it is not correct to say
that only public agricultural lands may be covered by the CARP as the Constitution calls for "the just
distribution of all agricultural lands." In any event, the decision to redistribute private agricultural lands
in the manner prescribed by the CARP was made by the legislative and executive departments in the
exercise of their discretion. We are not justified in reviewing that discretion in the absence of a clear
showing that it has been abused.

A becoming courtesy admonishes us to respect the decisions of the political departments when they
decide what is known as the political question. As explained by Chief Justice Concepcion in the case
of Tañada v. Cuenco: 36

The term "political question" connotes what it means in ordinary parlance, namely, a
question of policy. 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 legislative or executive branch of the government."
It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.

It is true that the concept of the political question has been constricted with the enlargement of judicial
power, which now includes the authority of the courts "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." 37 Even so, this should not be construed as a license for us to
reverse the other departments simply because their views may not coincide with ours.

The legislature and the executive have been seen fit, in their wisdom, to include in the CARP the
redistribution of private landholdings (even as the distribution of public agricultural lands is first
provided for, while also continuing apace under the Public Land Act and other cognate laws). The Court
sees no justification to interpose its authority, which we may assert only if we believe that the political
decision is not unwise, but illegal. We do not find it to be so.

In U.S. v. Chandler-Dunbar Water Power Company,38 it was held:

Congress having determined, as it did by the Act of March 3,1909 that the entire St.
Mary's river between the American bank and the international line, as well as all of the
upland north of the present ship canal, throughout its entire length, was "necessary for
the purpose of navigation of said waters, and the waters connected therewith," that
determination is conclusive in condemnation proceedings instituted by the United
States under that Act, and there is no room for judicial review of the judgment of
Congress ... .

As earlier observed, the requirement for public use has already been settled for us by the Constitution
itself No less than the 1987 Charter calls for agrarian reform, which is the reason why private agricultural
lands are to be taken from their owners, subject to the prescribed maximum retention limits. The
purposes specified in P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only an elaboration of the
constitutional injunction that the State adopt the necessary measures "to encourage and undertake the
just distribution of all agricultural lands to enable farmers who are landless to own directly or
collectively the lands they till." That public use, as pronounced by the fundamental law itself, must be
binding on us.
The second requirement, i.e., the payment of just compensation, needs a longer and more thoughtful
examination.

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the
expropriator. 39 It has been repeatedly stressed by this Court that the measure is not the taker's gain but
the owner's loss. 40 The word "just" is used to intensify the meaning of the word "compensation" to
convey the idea that the equivalent to be rendered for the property to be taken shall be real,
substantial, full, ample. 41

It bears repeating that the measures challenged in these petitions contemplate more than a mere
regulation of the use of private lands under the police power. We deal here with an actual taking of
private agricultural lands that has dispossessed the owners of their property and deprived them of all its
beneficial use and enjoyment, to entitle them to the just compensation mandated by the Constitution.

As held in Republic of the Philippines v. Castellvi, 42 there is compensable taking when the following
conditions concur: (1) the expropriator must enter a private property; (2) the entry must be for more
than a momentary period; (3) the entry must be under warrant or color of legal authority; (4) the
property must be devoted to public use or otherwise informally appropriated or injuriously affected; and
(5) the utilization of the property for public use must be in such a way as to oust the owner and deprive
him of beneficial enjoyment of the property. All these requisites are envisioned in the measures before
us.

Where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking
possession of the condemned property, as "the compensation is a public charge, the good faith of the
public is pledged for its payment, and all the resources of taxation may be employed in raising the
amount." 43 Nevertheless, Section 16(e) of the CARP Law provides that:

Upon receipt by the landowner of the corresponding payment or, in case of rejection or
no response from the landowner, upon the deposit with an accessible bank designated
by the DAR of the compensation in cash or in LBP bonds in accordance with this Act, the
DAR shall take immediate possession of the land and shall request the proper Register
of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the
Philippines. The DAR shall thereafter proceed with the redistribution of the land to the
qualified beneficiaries.

Objection is raised, however, to the manner of fixing the just compensation, which it is claimed is
entrusted to the administrative authorities in violation of judicial prerogatives. Specific reference is
made to Section 16(d), which provides that in case of the rejection or disregard by the owner of the
offer of the government to buy his land-

... the DAR shall conduct summary administrative proceedings to determine the
compensation for the land by requiring the landowner, the LBP and other interested
parties to submit evidence as to the just compensation for the land, within fifteen (15)
days from the receipt of the notice. After the expiration of the above period, the matter
is deemed submitted for decision. The DAR shall decide the case within thirty (30) days
after it is submitted for decision.
To be sure, the determination of just compensation is a function addressed to the courts of justice and
may not be usurped by any other branch or official of the government. EPZA v. Dulay 44 resolved a
challenge to several decrees promulgated by President Marcos providing that the just compensation for
property under expropriation should be either the assessment of the property by the government or the
sworn valuation thereof by the owner, whichever was lower. In declaring these decrees
unconstitutional, the Court held through Mr. Justice Hugo E. Gutierrez, Jr.:

The method of ascertaining just compensation under the aforecited decrees constitutes
impermissible encroachment on judicial prerogatives. It tends to render this Court
inutile in a matter which under this Constitution is reserved to it for final determination.

Thus, although in an expropriation proceeding the court technically would still have the
power to determine the just compensation for the property, following the applicable
decrees, its task would be relegated to simply stating the lower value of the property as
declared either by the owner or the assessor. As a necessary consequence, it would be
useless for the court to appoint commissioners under Rule 67 of the Rules of Court.
Moreover, the need to satisfy the due process clause in the taking of private property is
seemingly fulfilled since it cannot be said that a judicial proceeding was not had before
the actual taking. However, the strict application of the decrees during the proceedings
would be nothing short of a mere formality or charade as the court has only to choose
between the valuation of the owner and that of the assessor, and its choice is always
limited to the lower of the two. The court cannot exercise its discretion or
independence in determining what is just or fair. Even a grade school pupil could
substitute for the judge insofar as the determination of constitutional just compensation
is concerned.

xxx

In the present petition, we are once again confronted with the same question of
whether the courts under P.D. No. 1533, which contains the same provision on just
compensation as its predecessor decrees, still have the power and authority to
determine just compensation, independent of what is stated by the decree and to this
effect, to appoint commissioners for such purpose.

This time, we answer in the affirmative.

xxx

It is violative of due process to deny the owner the opportunity to prove that the
valuation in the tax documents is unfair or wrong. And it is repulsive to the basic
concepts of justice and fairness to allow the haphazard work of a minor bureaucrat or
clerk to absolutely prevail over the judgment of a court promulgated only after expert
commissioners have actually viewed the property, after evidence and arguments pro
and con have been presented, and after all factors and considerations essential to a fair
and just determination have been judiciously evaluated.
A reading of the aforecited Section 16(d) will readily show that it does not suffer from the arbitrariness
that rendered the challenged decrees constitutionally objectionable. Although the proceedings are
described as summary, the landowner and other interested parties are nevertheless allowed an
opportunity to submit evidence on the real value of the property. But more importantly, the
determination of the just compensation by the DAR is not by any means final and conclusive upon the
landowner or any other interested party, for Section 16(f) clearly provides:

Any party who disagrees with the decision may bring the matter to the court of proper
jurisdiction for final determination of just compensation.

The determination made by the DAR is only preliminary unless accepted by all parties concerned.
Otherwise, the courts of justice will still have the right to review with finality the said determination in
the exercise of what is admittedly a judicial function.

The second and more serious objection to the provisions on just compensation is not as easily resolved.

This refers to Section 18 of the CARP Law providing in full as follows:

SEC. 18. Valuation and Mode of Compensation. — The LBP shall compensate the
landowner in such amount as may be agreed upon by the landowner and the DAR and
the LBP, in accordance with the criteria provided for in Sections 16 and 17, and other
pertinent provisions hereof, or as may be finally determined by the court, as the just
compensation for the land.

The compensation shall be paid in one of the following modes, at the option of the
landowner:

(1) Cash payment, under the following terms and conditions:

(a) For lands above fifty (50) hectares, insofar as the

excess hectarage is concerned — Twenty-five percent
(25%) cash, the balance to be paid in government
financial instruments negotiable at any time.

(b) For lands above twenty-four (24) hectares and up to

fifty (50) hectares — Thirty percent (30%) cash, the
balance to be paid in government financial instruments
negotiable at any time.

(c) For lands twenty-four (24) hectares and below —

Thirty-five percent (35%) cash, the balance to be paid in
government financial instruments negotiable at any
time.

(2) Shares of stock in government-owned or controlled corporations, LBP preferred

shares, physical assets or other qualified investments in accordance with guidelines set
by the PARC;
(3) Tax credits which can be used against any tax liability;

(4) LBP bonds, which shall have the following features:

(a) Market interest rates aligned with 91-day treasury

bill rates. Ten percent (10%) of the face value of the
bonds shall mature every year from the date of issuance
until the tenth (10th) year: Provided, That should the
landowner choose to forego the cash portion, whether
in full or in part, he shall be paid correspondingly in LBP
bonds;

(b) Transferability and negotiability. Such LBP bonds

may be used by the landowner, his successors-in-
interest or his assigns, up to the amount of their face
value, for any of the following:

(i) Acquisition of land or other real properties of the

government, including assets under the Asset
Privatization Program and other assets foreclosed by
government financial institutions in the same province
or region where the lands for which the bonds were
paid are situated;

(ii) Acquisition of shares of stock of government-owned

or controlled corporations or shares of stock owned by
the government in private corporations;

(iii) Substitution for surety or bail bonds for the

provisional release of accused persons, or for
performance bonds;

(iv) Security for loans with any government financial

institution, provided the proceeds of the loans shall be
invested in an economic enterprise, preferably in a
small and medium- scale industry, in the same province
or region as the land for which the bonds are paid;

(v) Payment for various taxes and fees to government:

Provided, That the use of these bonds for these
purposes will be limited to a certain percentage of the
outstanding balance of the financial instruments;
Provided, further, That the PARC shall determine the
percentages mentioned above;
 (vi) Payment for tuition fees of the immediate family of
the original bondholder in government universities,
colleges, trade schools, and other institutions;

(vii) Payment for fees of the immediate family of the

original bondholder in government hospitals; and

(viii) Such other uses as the PARC may from time to time
allow.

The contention of the petitioners in G.R. No. 79777 is that the above provision is unconstitutional
insofar as it requires the owners of the expropriated properties to accept just compensation therefor in
less than money, which is the only medium of payment allowed. In support of this contention, they cite
jurisprudence holding that:

The fundamental rule in expropriation matters is that the owner of the property
expropriated is entitled to a just compensation, which should be neither more nor less,
whenever it is possible to make the assessment, than the money equivalent of said
property. Just compensation has always been understood to be the just and complete
equivalent of the loss which the owner of the thing expropriated has to suffer by reason
of the expropriation . 45 (Emphasis supplied.)

In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court held:

It is well-settled that just compensation means the equivalent for the value of the
property at the time of its taking. Anything beyond that is more, and anything short of
that is less, than just compensation. It means a fair and full equivalent for the loss
sustained, which is the measure of the indemnity, not whatever gain would accrue to
the expropriating entity. The market value of the land taken is the just compensation to
which the owner of condemned property is entitled, the market value being that sum of
money which a person desirous, but not compelled to buy, and an owner, willing, but
not compelled to sell, would agree on as a price to be given and received for such
property. (Emphasis supplied.)

In the United States, where much of our jurisprudence on the subject has been derived, the weight of
authority is also to the effect that just compensation for property expropriated is payable only in money
and not otherwise. Thus —

The medium of payment of compensation is ready money or cash. The condemnor

cannot compel the owner to accept anything but money, nor can the owner compel or
require the condemnor to pay him on any other basis than the value of the property in
money at the time and in the manner prescribed by the Constitution and the statutes.
When the power of eminent domain is resorted to, there must be a standard medium of
payment, binding upon both parties, and the law has fixed that standard as money in
cash. 47 (Emphasis supplied.)
 Part cash and deferred payments are not and cannot, in the nature of things, be
regarded as a reliable and constant standard of compensation. 48

"Just compensation" for property taken by condemnation means a fair equivalent in

money, which must be paid at least within a reasonable time after the taking, and it is
not within the power of the Legislature to substitute for such payment future
obligations, bonds, or other valuable advantage. 49 (Emphasis supplied.)

It cannot be denied from these cases that the traditional medium for the payment of just compensation
is money and no other. And so, conformably, has just compensation been paid in the past solely in that
medium. However, we do not deal here with the traditional excercise of the power of eminent domain.
This is not an ordinary expropriation where only a specific property of relatively limited area is sought to
be taken by the State from its owner for a specific and perhaps local purpose.

What we deal with here is a revolutionary kind of expropriation.

The expropriation before us affects all private agricultural lands whenever found and of whatever kind
as long as they are in excess of the maximum retention limits allowed their owners. This kind of
expropriation is intended for the benefit not only of a particular community or of a small segment of the
population but of the entire Filipino nation, from all levels of our society, from the impoverished farmer
to the land-glutted owner. Its purpose does not cover only the whole territory of this country but goes
beyond in time to the foreseeable future, which it hopes to secure and edify with the vision and the
sacrifice of the present generation of Filipinos. Generations yet to come are as involved in this program
as we are today, although hopefully only as beneficiaries of a richer and more fulfilling life we will
guarantee to them tomorrow through our thoughtfulness today. And, finally, let it not be forgotten that
it is no less than the Constitution itself that has ordained this revolution in the farms, calling for "a just
distribution" among the farmers of lands that have heretofore been the prison of their dreams but can
now become the key at least to their deliverance.

Such a program will involve not mere millions of pesos. The cost will be tremendous. Considering the
vast areas of land subject to expropriation under the laws before us, we estimate that hundreds of
billions of pesos will be needed, far more indeed than the amount of P50 billion initially appropriated,
which is already staggering as it is by our present standards. Such amount is in fact not even fully
available at this time.

We assume that the framers of the Constitution were aware of this difficulty when they called for
agrarian reform as a top priority project of the government. It is a part of this assumption that when
they envisioned the expropriation that would be needed, they also intended that the just compensation
would have to be paid not in the orthodox way but a less conventional if more practical method. There
can be no doubt that they were aware of the financial limitations of the government and had no illusions
that there would be enough money to pay in cash and in full for the lands they wanted to be distributed
among the farmers. We may therefore assume that their intention was to allow such manner of
payment as is now provided for by the CARP Law, particularly the payment of the balance (if the owner
cannot be paid fully with money), or indeed of the entire amount of the just compensation, with other
things of value. We may also suppose that what they had in mind was a similar scheme of payment as
that prescribed in P.D. No. 27, which was the law in force at the time they deliberated on the new
Charter and with which they presumably agreed in principle.
The Court has not found in the records of the Constitutional Commission any categorical agreement
among the members regarding the meaning to be given the concept of just compensation as applied to
the comprehensive agrarian reform program being contemplated. There was the suggestion to "fine
tune" the requirement to suit the demands of the project even as it was also felt that they should "leave
it to Congress" to determine how payment should be made to the landowner and reimbursement
required from the farmer-beneficiaries. Such innovations as "progressive compensation" and "State-
subsidized compensation" were also proposed. In the end, however, no special definition of the just
compensation for the lands to be expropriated was reached by the Commission. 50

On the other hand, there is nothing in the records either that militates against the assumptions we are
making of the general sentiments and intention of the members on the content and manner of the
payment to be made to the landowner in the light of the magnitude of the expenditure and the
limitations of the expropriator.

With these assumptions, the Court hereby declares that the content and manner of the just
compensation provided for in the afore- quoted Section 18 of the CARP Law is not violative of the
Constitution. We do not mind admitting that a certain degree of pragmatism has influenced our decision
on this issue, but after all this Court is not a cloistered institution removed from the realities and
demands of society or oblivious to the need for its enhancement. The Court is as acutely anxious as the
rest of our people to see the goal of agrarian reform achieved at last after the frustrations and
deprivations of our peasant masses during all these disappointing decades. We are aware that
invalidation of the said section will result in the nullification of the entire program, killing the farmer's
hopes even as they approach realization and resurrecting the spectre of discontent and dissent in the
restless countryside. That is not in our view the intention of the Constitution, and that is not what we
shall decree today.

Accepting the theory that payment of the just compensation is not always required to be made fully in
money, we find further that the proportion of cash payment to the other things of value constituting the
total payment, as determined on the basis of the areas of the lands expropriated, is not unduly
oppressive upon the landowner. It is noted that the smaller the land, the bigger the payment in money,
primarily because the small landowner will be needing it more than the big landowners, who can afford
a bigger balance in bonds and other things of value. No less importantly, the government financial
instruments making up the balance of the payment are "negotiable at any time." The other modes,
which are likewise available to the landowner at his option, are also not unreasonable because payment
is made in shares of stock, LBP bonds, other properties or assets, tax credits, and other things of value
equivalent to the amount of just compensation.

Admittedly, the compensation contemplated in the law will cause the landowners, big and small, not a
little inconvenience. As already remarked, this cannot be avoided. Nevertheless, it is devoutly hoped
that these countrymen of ours, conscious as we know they are of the need for their forebearance and
even sacrifice, will not begrudge us their indispensable share in the attainment of the ideal of agrarian
reform. Otherwise, our pursuit of this elusive goal will be like the quest for the Holy Grail.

The complaint against the effects of non-registration of the land under E.O. No. 229 does not seem to be
viable any more as it appears that Section 4 of the said Order has been superseded by Section 14 of the
CARP Law. This repeats the requisites of registration as embodied in the earlier measure but does not
provide, as the latter did, that in case of failure or refusal to register the land, the valuation thereof shall
be that given by the provincial or city assessor for tax purposes. On the contrary, the CARP Law says that
the just compensation shall be ascertained on the basis of the factors mentioned in its Section 17 and in
the manner provided for in Section 16.

The last major challenge to CARP is that the landowner is divested of his property even before actual
payment to him in full of just compensation, in contravention of a well- accepted principle of eminent
domain.

The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the
expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic jurisdictions. Thus:

Title to property which is the subject of condemnation proceedings does not vest the condemnor until
the judgment fixing just compensation is entered and paid, but the condemnor's title relates back to the
date on which the petition under the Eminent Domain Act, or the commissioner's report under the Local
Improvement Act, is filed. 51

... although the right to appropriate and use land taken for a canal is complete at the time of entry, title
to the property taken remains in the owner until payment is actually made. 52 (Emphasis supplied.)

In Kennedy v. Indianapolis, 53 the US Supreme Court cited several cases holding that title to property
does not pass to the condemnor until just compensation had actually been made. In fact, the decisions
appear to be uniformly to this effect. As early as 1838, in Rubottom v. McLure, 54 it was held that "actual
payment to the owner of the condemned property was a condition precedent to the investment of the
title to the property in the State" albeit "not to the appropriation of it to public use." In Rexford v.
Knight, 55 the Court of Appeals of New York said that the construction upon the statutes was that the fee
did not vest in the State until the payment of the compensation although the authority to enter upon
and appropriate the land was complete prior to the payment. Kennedy further said that "both on
principle and authority the rule is ... that the right to enter on and use the property is complete, as soon
as the property is actually appropriated under the authority of law for a public use, but that the title
does not pass from the owner without his consent, until just compensation has been made to him."

Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, 56 that:

If the laws which we have exhibited or cited in the preceding discussion are attentively
examined it will be apparent that the method of expropriation adopted in this
jurisdiction is such as to afford absolute reassurance that no piece of land can be finally
and irrevocably taken from an unwilling owner until compensation is paid ... . (Emphasis
supplied.)

It is true that P.D. No. 27 expressly ordered the emancipation of tenant-farmer as October 21, 1972 and
declared that he shall "be deemed the owner" of a portion of land consisting of a family-sized farm
except that "no title to the land owned by him was to be actually issued to him unless and until he had
become a full-fledged member of a duly recognized farmers' cooperative." It was understood, however,
that full payment of the just compensation also had to be made first, conformably to the constitutional
requirement.
When E.O. No. 228, categorically stated in its Section 1 that:

All qualified farmer-beneficiaries are now deemed full owners as of October 21, 1972 of
the land they acquired by virtue of Presidential Decree No. 27. (Emphasis supplied.)

it was obviously referring to lands already validly acquired under the said decree, after proof of full-
fledged membership in the farmers' cooperatives and full payment of just compensation. Hence, it was
also perfectly proper for the Order to also provide in its Section 2 that the "lease rentals paid to the
landowner by the farmer- beneficiary after October 21, 1972 (pending transfer of ownership after full
payment of just compensation), shall be considered as advance payment for the land."

The CARP Law, for its part, conditions the transfer of possession and ownership of the land to the
government on receipt by the landowner of the corresponding payment or the deposit by the DAR of
the compensation in cash or LBP bonds with an accessible bank. Until then, title also remains with the
landowner. 57 No outright change of ownership is contemplated either.

Hence, the argument that the assailed measures violate due process by arbitrarily transferring title
before the land is fully paid for must also be rejected.

It is worth stressing at this point that all rights acquired by the tenant-farmer under P.D. No. 27, as
recognized under E.O. No. 228, are retained by him even now under R.A. No. 6657. This should counter-
balance the express provision in Section 6 of the said law that "the landowners whose lands have been
covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them
thereunder, further, That original homestead grantees or direct compulsory heirs who still own the
original homestead at the time of the approval of this Act shall retain the same areas as long as they
continue to cultivate said homestead."

In connection with these retained rights, it does not appear in G.R. No. 78742 that the appeal filed by
the petitioners with the Office of the President has already been resolved. Although we have said that
the doctrine of exhaustion of administrative remedies need not preclude immediate resort to judicial
action, there are factual issues that have yet to be examined on the administrative level, especially the
claim that the petitioners are not covered by LOI 474 because they do not own other agricultural lands
than the subjects of their petition.

Obviously, the Court cannot resolve these issues. In any event, assuming that the petitioners have not
yet exercised their retention rights, if any, under P.D. No. 27, the Court holds that they are entitled to
the new retention rights provided for by R.A. No. 6657, which in fact are on the whole more liberal than
those granted by the decree.

The CARP Law and the other enactments also involved in these cases have been the subject of bitter
attack from those who point to the shortcomings of these measures and ask that they be scrapped
entirely. To be sure, these enactments are less than perfect; indeed, they should be continuously re-
examined and rehoned, that they may be sharper instruments for the better protection of the farmer's
rights. But we have to start somewhere. In the pursuit of agrarian reform, we do not tread on familiar
ground but grope on terrain fraught with pitfalls and expected difficulties. This is inevitable. The CARP
Law is not a tried and tested project. On the contrary, to use Justice Holmes's words, "it is an
experiment, as all life is an experiment," and so we learn as we venture forward, and, if necessary, by
our own mistakes. We cannot expect perfection although we should strive for it by all means.
Meantime, we struggle as best we can in freeing the farmer from the iron shackles that have
unconscionably, and for so long, fettered his soul to the soil.

By the decision we reach today, all major legal obstacles to the comprehensive agrarian reform program
are removed, to clear the way for the true freedom of the farmer. We may now glimpse the day he will
be released not only from want but also from the exploitation and disdain of the past and from his own
feelings of inadequacy and helplessness. At last his servitude will be ended forever. At last the farm on
which he toils will be his farm. It will be his portion of the Mother Earth that will give him not only the
staff of life but also the joy of living. And where once it bred for him only deep despair, now can he see
in it the fruition of his hopes for a more fulfilling future. Now at last can he banish from his small plot of
earth his insecurities and dark resentments and "rebuild in it the music and the dream."

WHEREFORE, the Court holds as follows:

1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O. Nos. 228 and 229 are SUSTAINED
against all the constitutional objections raised in the herein petitions.

2. Title to all expropriated properties shall be transferred to the State only upon full
payment of compensation to their respective owners.

3. All rights previously acquired by the tenant- farmers under P.D. No. 27 are retained
and recognized.

4. Landowners who were unable to exercise their rights of retention under P.D. No. 27
shall enjoy the retention rights granted by R.A. No. 6657 under the conditions therein
prescribed.

5. Subject to the above-mentioned rulings all the petitions are DISMISSED, without
pronouncement as to costs.

SO ORDERED.

Fernan, (C.J.), Narv