Rene A.V. Saguisag, et al. Vs. Executive Secretary Paquito N. Ochoa, Jr., et al./Bagong Alyansang Makabayan (Bayan), et al Vs. Department of National Defense Secretary Voltaire Gazmin, et al., G.R. No. 212426, January 12, 2016
♦ Decision,
Sereno [J]
♦ Separate Concurring Opinion,
Carpio [J]
♦ Dissenting Opinion,
Brion [J] Leonen [J]
♦ Concurring and Dissenting Opinion,
De Castro [J]
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.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
SEPARATE CONCURRING OPINION
CARPIO, J.:
The threshold issue in this case is whether the Enhanced Defense Cooperation Agreement (EDCA) merely implements the existing and ratified 1951 Mutual Defense Treaty1 (MDT), or whether the EDCA is a new treaty requiring Senate ratification to take effect.
The answer to this question turns on whether, under present circumstances, the attainment of the purpose of the MDT requires the EDCA. The fundamental rule in treaty interpretation is that a treaty must be interpreted "in the light of its object and purpose."2
As stated in the MDT, the purpose of the United States (U.S.) and the Philippines in forging the MDT is to "declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack." If the MDT cannot attain this purpose without the EDCA, then the EDCA merely implements the MDT and Executive action is sufficient to make the EDCA valid.
A ratified treaty like the MDT must be interpreted to allow the Executive to take all necessary measures to insure that the treaty's purpose is attained. A ratified treaty cannot be interpreted to require a second ratified treaty to implement the first ratified treaty, as a fundamental rule is that a treaty must be interpreted to avoid a "result which is manifestly absurd or unreasonable."3 This is particularly true to a mutual defense treaty the purpose of which is mutual self-defense against sudden armed attack by a third state.
However, if the MDT can attain its purpose without the EDCA, then the EDCA is a separate treaty that requires Senate ratification. I shall discuss why, under present circumstances, the EDCA is absolutely necessary and essential to attain the purpose of the MDT.
With the departure in 1992 of U.S. military forces from Subic Naval Base and Clark Air Base in Luzon, a power vacuum resulted in the South China Sea. As in any power vacuum, the next power would rush in to fill the vacuum. Thus, China, the next power after the U.S., filled the power vacuum in the South China Sea, which includes the West Philippine Sea.4
In early 1995, barely three years after the departure of U.S. military forces from the Philippines, China seized Mischief Reef from the Philippines. There was no power to deter China as the U.S. forces had left. The Philippines did not anticipate that China would rush in to fill the power vacuum, or if the Philippines anticipated this, it did not upgrade its military to deter any Chinese aggression. After China seized Mischief Reef in 1995, the Philippines still did not upgrade its military, particularly its navy.
In 2012, China seized Scarborough Shoal from the Philippines, which could offer no armed resistance to Chinese naval forces. The Scarborough Shoal seizure finally made the Philippine Government realize that there was an absolute need to deter China's creeping invasion of Philippine islands, rocks and reefs in the West Philippine Sea. Thus, the Philippines rushed the modernization of its navy and air force. The Philippines also agreed with the U.S. to use the MDT to preposition U.S. war materials in strategic locations in the Philippines, particularly in the islands of Palawan and Luzon facing the West Philippine Sea.
In modern warfare, the successful implementation of a mutual defense treaty requires the strategic prepositioning of war materials. Before the advent of guided missiles and drones, wars could take months or even years to prosecute. There was plenty of time to conscript and train soldiers, manufacture guns and artillery, and ship war materials to strategic locations even after the war had started. Today, wars could be won or lost in the first few weeks or even first few days after the initial outbreak of war.
In modern warfare, the prepositioning of war materials, like mobile anti-ship and anti-aircraft missiles, is absolutely necessary and essential to a successful defense against armed aggression, particularly for a coastal state like the Philippines. This is what the EDCA is all about - the prepositioning in strategic locations of war materials to successfully resist any armed aggression. Such prepositioning will also publicly telegraph to the enemy that any armed aggression would be repelled. The enemy must know that we possess the capability, that is, the war materials, to defend the country against armed aggression. Otherwise, without such capability, we telegraph to the enemy that further seizure of Philippine islands, rocks and reefs in the South China Sea would be a walk in the park, just like China's seizure of Mischief Reef and Scarborough Shoal. Without such capability, we would practically be inviting the enemy to seize whatever Philippine island, rock or reef it desires to seize in the West Philippine Sea.
Since 2014, China has started building artificial islands in the Spratlys out of submerged areas like Mischief Reef and Subi Reef, or out of rocks that barely protrude above water at high tide like Fiery Cross Reef. China has so far created a 590-hectare artificial island in Mischief Reef which is only 125 nautical miles (NM) from Palawan, well within the Philippines' Exclusive Economic Zone (EEZ). In comparison, San Juan City is 595 hectares in area. China has built a 390-hectare artificial island in Subi Reef, outside the Philippines' EEZ but within its Extended Continental Shelf (ECS). China has created a 265-hectare artificial island in Fiery Cross Reef, outside the Philippines' EEZ but within its ECS.
China claims that its island-building activities are for civilian purposes but the configuration of these artificial islands shows otherwise. The configuration of China's Mischief Reef island, which is China's largest artificial island in the Spratlys, is that of a combined air and naval base, with a 3,000-meter airstrip.5 The configuration of China's Subi Reef island is that of a naval base with a 3,000-meter airstrip. The configuration of China's Fiery Cross Reef island is that of an airbase with a 3,000-meter airstrip and a harbor for warships. These three air and naval bases form a triangle in the Spratlys, surrounding the islands occupied by the Philippines.
Mischief Reef, located mid-way between Pala wan and Pagasa, is ideally situated to block Philippine ships re-supplying Pagasa, the largest Philippine-occupied island in the Spratlys. Mischief Reef is also close to the gas-rich Reed Bank, the gas field that should replace Malampaya once Malampaya runs out of gas in 10 to 12 years. Malampaya supplies 40% of the energy requirement of Luzon. The Reed Bank and Malampaya are well within the Philippines' EEZ. However, China's 9-dashed lines enclose entirely the Reed Bank and encroach partly on Malampaya.
It is obvious that China will use the three air and naval bases in its artificial islands to prevent Philippine ships and planes from re-supplying Philippine-occupied islands in the Spratlys, forcing the Philippines to abandon its occupied islands. Already, Chinese coast guard vessels are preventing medium-sized Philippine ships from re-supplying the BRP Sierra Madre, the dilapidated Philippine landing ship beached in Ayungin Shoal, just 20 NM from Mischief Reef. Only the Philippines' use of small watercrafts enables the re-supply to the BRP Sierra Madre, which is manned by about a dozen Philippine marine soldiers. The Philippines' small watercrafts can navigate the shallow waters of Ayungin Shoal while China's large coast guard vessels cannot.
With the anticipated installation by China of military facilities and war materials in its three air and naval bases in the Spratlys, expected to be completed before the end of 2016, China will begin to aggressively enforce its 9-dashed lines claim over the South China Sea. Under this claim, China asserts sovereignty not only to all the islands, rocks and reefs in the Spratlys, but also to 85. 7% of the South China Sea, comprising all the waters, fisheries, mineral resources, seabed and submarine areas enclosed by the 9-dashed lines. Under this claim, the Philippines will lose 381,000 square kilometers6 of its EEZ in the West Philippine Sea, a maritime space larger than the total Philippine land area of 300,000 square kilometers. China's 9-dashed lines claim encroaches on all the traditional fishing grounds of Filipino fishermen in the South China Sea: Scarborough Shoal, Macclesfield Bank and the Spratlys.
The Philippines, acting by itself, cannot hope to deter militarily China from enforcing its 9-dashed lines claim in the West Philippine Sea. The Philippines cannot acquire war materials like anti-ship and anti-aircraft missiles off the shelf. The operation of anti-ship missiles requires communications with airborne radar or satellite guidance systems. With the completion of China's air and naval bases before the end of 2016, the Philippines has no time to acquire, install and operate an anti-ship missile system on its own. Military and security analysts are unanimous that there is only one power on earth that can deter militarily China from enforcing its 9-dashed lines claim, and that power is the United States. This is why the MDT is utterly crucial to the Philippines' defense of its EEZ in the West Philippine Sea.
Of course, the United States has repeatedly stated that the MDT does not cover the disputed islands, rocks and reefs in the South China Sea. We understand this because at the time the MDT was signed the Philippine territory recognized by the United States did not include the Kalayaan Island Group in the Spratlys. However, the MDT provides that an armed attack on "public vessels or aircraft" (military or coast guard ship or aircraft) of either the United States or the Philippines in the Pacific area is one of the grounds for a party to invoke mutual defense under the MDT.7 The United States has officially clarified that the Pacific area includes the South China Sea.8
If China's navy ships attack a Philippine military ship re-supplying Philippine-occupied islands in the Spratlys, that will be covered by the MDT. However, unless the U.S. and the Philippines have prepositioned anti-ship missiles in Palawan, there will be no deterrence to China, and no swift response from U.S. and Philippine forces. The absence of any deterrence will likely invite Chinese harassment, or even armed attack, on Philippine re-supply ships. That will lead to the loss of all Philippine-occupied islands in the Spratlys, as well as the loss of the gas-rich Reed Bank.
The prepositioning of war materials is a necessary and essential element to achieve the purpose of the MDT. Article II of the MDT expressly provides:
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. (Emphasis supplied)
The prepositioning of war materials is the very essence of the phrase to "maintain and develop (the Parties') individual and collective capacity to resist armed attack." Without the prepositioning of war materials, a Party to the MDT cannot maintain and develop the capacity to resist armed attack. Without the prepositioning of war materials, a Party is simply and totally unprepared for armed attack.
The 1987 Constitution defines the "national territory" to include not only islands or rocks above water at high tide but also the seabed, subsoil and other submarine areas "over which the Philippines has sovereignty or jurisdiction." Article 1 of the 1987 Constitution provides:
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied)
Thus, the Philippine "national territory" refers to areas over which the Philippines has "sovereignty or jurisdiction." The Constitution mandates: "The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."9
Under both customary international law and the 1982 United Nations Convention on the Law of the Sea (UN CLOS), the Philippines has "sovereign rights" and "jurisdiction"10 to exploit exclusively all the living and non-living resources within its EEZ. Under the UNCLOS, the Philippines has the sovereign rights to exploit exclusively the mineral resources within its ECS.11 Under the UNCLOS, the Philippines also has sole "jurisdiction" to create artificial islands or install structures within its EEZ12 and ECS.13
In short, under international law and in particular under the UNCLOS, the Philippines has jurisdiction over its EEZ and ECS. Thus, under domestic law, the Philippines' EEZ and ECS form part of Philippine "national territory" since the Constitution defines "national territory" to include areas over which the Philippines has "jurisdiction," a term which means less than sovereignty. However, under international law, the Philippine "national territory" refers to the areas over which the Philippines has sovereignty, referring to the Philippines' land territory, archipelagic waters and territorial sea, excluding areas over which the Philippines exercises only jurisdiction like its EEZ and ECS.
China has already invaded repeatedly Philippine "national territory" in two separate areas, one in the Kalayaan Island Group in the Spratlys and the other in Scarborough Shoal. When China seized in 1988 Subi Reef, a submerged area within the Philippines' ECS and beyond the territorial sea of any high tide feature,14 China invaded Philippine national territory as defined in the Constitution. When China seized in 1995 Mischief Reef, a submerged area within the Philippines' EEZ and beyond the territorial sea of any high tide feature,15 China invaded Philippine national territory as defined in the Constitution. When China seized in 2012 Scarborough Shoal, a rock above water at high tide and constituting land territory under international law, China invaded Philippine national territory as defined in the Constitution and as understood in international law. Republic Act No. 9522, amending the Philippine Baselines Law, expressly declares that Scarborough Shoal is part of Philippine territory over which the Philippines exercises "sovereignty and jurisdiction."16
After China's seizure of Scarborough Shoal in 2012, the Philippines finally woke up and summoned the political will to address the serial and creeping Chinese invasion of Philippine national territory. Thus, the EDCA was born, to give much needed teeth to the MDT as a deterrent to further Chinese aggression in the West Philippine Sea. Without the EDCA, the MDT remains a toothless paper tiger. With the EDCA, the MDT acquires a real and ready firepower to deter any armed aggression against Philippine public vessels or aircrafts operating in the West Philippine Sea.
With the EDCA, China will think twice before attacking Philippine military re-supply ships to Philippine-occupied islands in the Spratlys. With the EDCA, the Philippines will have a fighting chance to hold on to Philippine-occupied islands in the Spratlys. With the EDCA, China will think twice before attacking Philippine navy and coast guard vessels patrolling the West Philippine Sea. This will give the Philippines a fighting chance to ward off China's impending enforcement of its 9-dashed lines as China's "national boundaries" as shown in its 2013 official vertical map.17
The number and sites of the "agreed locations" to place the prepositioned war materials must necessarily remain numerous and anonymous. The "agreed locations" must be numerous enough to survive repeated or surprise armed attacks. There must not only be redundant "agreed locations" but also dummy "agreed locations" to mislead the enemy. The sites of many of the "agreed locations" cannot be disclosed publicly because that will give the enemy the fixed coordinates of the "agreed locations," making them easy targets of long-range enemy cruise missiles. The number and sites of the "agreed locations" are matters best left to the sound discretion of the Executive, who is the implementing authority of the MDT for the Philippines.
The implementation of the MDT is a purely Executive function since the Senate has already ratified the MDT. The implementation of the MDT is also part of the purely Executive function of the President as Commander-in-Chief of the Armed Forces. As executor and "chief architect"18 of the country's relations with foreign countries, including our treaty ally the United States, the President is constitutionally vested with ample discretion in the implementation of the MDT. EDCA, being essentially and entirely an implementation of the MDT, is within the sole authority of the President to enter into as an executive agreement with the U.S.
Article VIII of the MDT provides: "This Treaty shall remain in force indefinitely. Either party may terminate it one year after notice is given to the other Party." Neither the Philippines nor the United States has terminated the MDT. On the contrary, the 1998 Visiting Forces Agreement between the Philippines and the United States, which the Philippine Senate has ratified, expressly states that the parties are "[r]eaffirming their obligations under the Mutual Defense Treaty of August 30, 1951." Thus, the continued validity and relevance of the MDT cannot be denied.
Moreover, the Senate ratification of the MDT complies with the requirement of Section 25, Article XVIIP9 of the 1987 Constitution that any agreement allowing foreign military facilities in the Philippines, like the prepositioning of U.S. war materials, must be embodied in a treaty and ratified by two-thirds vote20 of the Senate. That treaty is the MDT which the Philippine Senate ratified by two-thirds vote on 12 May 195221 and which the U.S. Senate ratified on 20 March 1952.22
In summary, the EDCA is absolutely necessary and essential to implement the purpose of the MDT, which on the part of the Philippines, given the existing situation in the West Philippine Sea, is to deter or repel any armed attack on Philippine territory or on any Philippine public vessel or aircraft operating in the West Philippine Sea. To hold that the EDCA cannot take effect without Senate ratification is to render the MDT, our sole mutual self-defense treaty, totally inutile to meet the grave, even existentialist,23 national security threat that the Philippines is now facing in the West Philippine Sea.
China has already invaded several geologic features comprising part of Philippine "national territory" as defined in the Constitution. The territorial integrity of the Philippines has been violated openly and repeatedly. The President, as Commander-in-Chief of the Armed Forces, "chief architect" of foreign policy and implementer of the MDT, has decided on the urgent need to fortify Philippine military defenses by prepositioning war materials of our treaty ally on Philippine soil. This Court should not erect roadblocks to the President's implementation of the MDT, particularly since time is of the essence and the President's act of entering into the EDCA on his own does not violate any provision of the Constitution.
A final word. The EDCA does not detract from the legal arbitration case that the Philippines has filed against China under UNCLOS. The EDCA brings into the Philippine strategy the element of credible self-defense. Having refused to participate in the legal arbitration despite being obligated to do so under UNCLOS, China is now using brute force to assert its claim to almost the entire South China Sea. Given this situation, the proper equation in defending the Philippines' maritime zones in the West Philippine Sea is "legal right plus credible self-defense equals might."
Accordingly, I vote to DISMISS the petitions on the ground that the EDCA merely implements, and in fact is absolutely necessary and essential to the implementation of, the MDT, an existing treaty that has been ratified by the Senate.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 The Philippine Senate ratified the MDT on 12 May 1952 under Senate Resolution No. 84.
2 Article 31 of the 1969 Vienna Convention on the Law of Treaties (Vienna Convention) provides:
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
x x x. (Emphasis supplied)
The Philippines acceded to the Vienna Convention on 15 November 1972.
3 Article 32 of the 1969 Vienna Convention on the Law of Treaties provides:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. (Emphasis supplied)
4 See Administrative Order No. 29, 5 September 2012.
5 A 3,000-meter airstrip is long enough for any military aircraft of China to land and take off. A Boeing 747 airliner, or a 852 bomber, can easily land and take off on a 3,000-meter airstrip.
6 Final Transcript Day 1 - Merits Hearing, page 58, line 11, Philippines-China Arbitration, http://www.pcacases.com/web/sendAttach/15487.
7 Article IV of the MDT provides: "Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.xx x."
8 Letter of U.S. Secretary of State Cyrus Vance to Philippine Secretary of Foreign Affairs Carlos P. Romulo dated 6 January 1979; Letter of U.S. Ambassador to the Philippines Thomas C. Hubbard to Foreign Secretary Domingo L. Siazon dated 24 May 1999.
9 Section 2, Article XII of the 1987 Constitution. Emphasis supplied.
10 Article 56 ofUNCLOS provides:
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
x x x x (Emphasis supplied)
11 Article 77 of the UNCLOS provides:
Article 77
Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph I are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. (Emphasis supplied)
12 Article 60 of the UN CLOS provides:
Article 60
Artificial islands, installations and structures in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.
x x x x (Emphasis supplied)
13 Article 80 of the UNCLOS provides:
Article 80
Artificial islands, installations and structures on the continental shelf
Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.
14 Final Transcript Day 2 - Merits Hearing, page 23, lines 7, 8 and 9, Philippines-China Arbitration, http://www.pcacases.com/web/sendAttach/l 548.
15 Id.
16 Section 2 of RA No. 9522 provides: "The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UN CLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and
b) Bajo de Masinloc, also known as Scarborough Shoal." (Emphasis supplied)
17 In its Note Verbale of 7 June 2013 to China, the Philippines stated it "strongly objects to the indication that the nine-dash lines are China's national boundaries in the West Philippine Sea/South China Sea." (Emphasis supplied)
18 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303 (2005).
19 Section 25, Article XVIII of the 1987 Constitution provides: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." (Emphasis supplied)
20 Section 21, Article VII of the 1987 Constitution provides: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." (Emphasis supplied)
21 The 1935 Constitution, under which the MDT was ratified, also required ratification of treaties by two-thirds vote of the Senate. Section 10(7), Article VII of the 1935 Constitution provides: "The President shall have the power, with the concurrence of two thirds of all the Members of the Senate, to make treaties, and with the consent of the Commission on Appointments, he shall appoint ambassadors, other public ministers; and consuls. He shall receive ambassadors and other public ministers duly accredited to the Government of the Philippines." (Emphasis supplied)
22 See footnote 7, Nicolas v. Romulo, 598 Phil. 262 (2009).
23 China's successful control of the South China Sea will force the Philippines to share a 1,300-kilometer sea border with China, from Balabac Island in Palawan to Yamin Island in Batanes, very close to the Philippine coastline facing the South China Sea. This will bring the Philippines into China's orbit, with the Philippines adhering to China's positions on matters involving foreign policy.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
BRION, J.:
Before this Court is the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA), an executive agreement with the United States of America (US.) that the Executive Department entered into and ratified on June 6, 20I4.1
This case is not an easy one to resolve for many reasons - the stakes involved in light of contemporary history, the limited reach of judicial inquiry, the limits of the Court's own legal competence in fully acting on petitions before it, and the plain and clear terms of our Constitution. While the petitions, the comments, and the ponencia all extensively dwell on constitutional, statutory, and international law, the constitutional challenge cannot be resolved based solely on our consideration of the Constitution nor through the prism of Philippine national interest considerations, both expressed and those left unspoken in these cases. In our globalized world where Philippine interests have long been intersecting with those of others in the world, the country's externalities - the international and regional situations and conditions - must as well be considered as operating background from where the Philippines must determine where its national interests lie.
From the practical point of view of these externalities and the violation of Philippine territorial sovereignty that some of us have expressed, a quick decision may immediately suggest itself - let us do away with all stops and do what we must to protect our sovereignty and national integrity.
What renders this kind of resolution difficult to undertake is the violation of our own Constitution - the express manifestation of the collective will of the Filipino people - that may transpire if we simply embrace the proffered easy solutions. Our history tells us that we cannot simply tum a blind eye to our Constitution without compromising the very same interests that we as a nation want to protect through a decision that looks only at the immediate practical view. To lightly regard our Constitution now as we did in the past, is to open the way to future weightier transgressions that may ultimately be at the expense of the Filipino people.
It is with these thoughts that this Opinion has been written: I hope to consider all the interests involved and thereby achieve a result that balances the immediate with the long view of the concerns besetting the nation.
I am mindful, of course, that the required actions that would actively serve our national interests depend, to a large extent, on the political departments of government - the Executive and, to some extent, the Legislature.2 The Judiciary has only one assigned role - to ensure that the Constitution is followed and, in this manner, ensure that the Filipino people's larger interests, as expressed in the Constitution, are protected.3 Small though this contribution may be, let those of us from the Judiciary do our part and be counted.
I. THE CASE
I.A. The Petitions
The challenges to the EDCA come from several petitions that uniformly question - based on Article XVIII, Section 25 of the 1987 Constitution - the use of an executive agreement as the medium for the agreement with the U.S. The petitioners posit that the EDCA involves foreign military bases, troops, and facilities whose entry into the country should be covered by a treaty concurred in by the Senate.
They question substantive EDCA provisions as well, particularly the grant of telecommunication and tax privileges to the U.S. armed forces and its personnel;4 the constitutional ban against the presence and storage of nuclear weapons within the Philippines;5 the violation of the constitutional mandate to protect the environment;6 the deprivation by the EDCA of the exercise by the Supreme Court of its power of judicial review;7 the violation of the constitutional policy on the preferential use of Filipino labor and materials;8 the violation of the constitutional command to pursue an independent foreign policy;9 the violation of the constitutional provision on the autonomy of local government units10 and of National Building Code;11 and, last but not the least, they question the EDCA for being a one-sided agreement in favor of the Americans.12
I.B. The Respondents' Positions
The respondents, through the Office of the Solicitor General (OSG), respond by questioning the petitioners on the threshold issues of justiciability, prematurity and standing, and by invoking the application of the political question doctrine.13
The OSG claims as well that the EDCA is properly embodied in an executive agreement as it is an exercise of the President's power and duty to serve and protect the people, and of his commander-in-chief powers;14 that the practical considerations of the case requires a deferential review of executive decisions over national security;15 that the EDCA is merely in implementation of two previous treaties - the Mutual Defense Treaty of 1951 (1951 MDT) and the Visiting Forces Agreement of 1998 (1998 VFA);16 that the President may choose the form of the agreement, provided that the agreement dealing with foreign military bases, troops, or facilities is not the principal agreement that first allowed their entry or presence in the Philippines.
I.C. The Ponencia
The ponencia exhaustively discusses many aspects of the challenges in its support of the OSG positions. It holds that the President is the chief implementor of the law and has the duty to defend the State, and for these purposes, he may use these powers in the conduct of foreign relations;17 even if these powers are not expressly granted by the law in this regard, he is justified by necessity and is limited only by the law since he must take the necessary and proper steps to carry the law into execution.
The ponencia further asserts that the President may enter into an executive agreement on foreign military bases, troops, or facilities, if:
(a) it is not the instrument that allows the presence of foreign military bases, troops, or facilities; or
(b) it merely aims to implement an existing law or treaty.18
It adds that the 1951 MDT is not an obsolete treaty;19 that the 1998 VFA has already allowed the entry of U.S. troops and civilian personnel and is the treaty being implemented by the EDCA;20 that the President may generally enter into executive agreements subject to the limitations defined by the Constitution, in furtherance of a treaty already concurred in by the Senate;21 that the President can choose to agree to the EDCA either by way of an executive agreement or by treaty.22 While it compares the EDCA with the 1951 MDT and the 1998 VFA, it claims at the same time it merely implements these treaties.23
On the exercise of its power of judicial review, the ponencia posits that the Court does not look into whether an international agreement should be in the form of a treaty or an executive agreement, save in the cases in which the Constitution or a statute requires otherwise;24 that the task of the Court is to determine whether the international agreement is consistent with applicable limitations;25 and that executive agreements may cover the matter of foreign military forces if these merely involve adjustments of details.26
I.D. The Dissent
I dissent, as I disagree that an executive agreement is the proper medium for the matters covered by the EDCA. The EDCA is an agreement that, on deeper examination, violates the letter and spirit of Article XVIII, Section 25 and Article VII, Section 21, both of the Constitution.
The EDCA should be in the form of a treaty as it brings back to the Philippines
- the modern equivalent of the foreign military bases whose term expired in 1991 and which Article XVIII, Section 25 of the Constitution directly addresses;
- foreign troops under arrangements outside of the contemplation of the visiting forces that the 1998 VFA allows; and
- military facilities that, under modern military strategy, likewise can be brought in only through a treaty.
As the ponencia does, I shall discuss the background facts and the threshold issues that will enable the Court and the reading public to fully appreciate the constitutional issues before us, as well as my reasons for the conclusion that the EDCA, as an executive agreement, is constitutionally deficient.
I purposely confine myself to the term "constitutionally deficient" (instead of saying "unconstitutional") in light of my view that the procedural deficiency that plagues the EDCA as an executive agreement is remediable and can still be addressed. Also on purpose, I refrain from commenting on the substantive objections on the contents of the EDCA for the reasons explained below.
II. THE THRESHOLD ISSUES
The petitioners bring their challenges before this Court on the basis of their standing as citizens, taxpayers, and former legislators. The respondents, on the other hand, question the justiciability of the issues raised and invoke as well the political question doctrine to secure the prompt dismissal of the petitions. I shall deal with these preliminary issues below, singly and in relation with one another, in light of the commonality that these threshold issues carry.
The petitioners posit that the use of an executive agreement as the medium to carry EDCA into effect, violates Article XVIII, Section 25 of the 1987 Constitution and is an issue of transcendental importance that they, as citizens, can raise before the Supreme Court.27 (Significantly, the incumbent Senators are not direct participants in this case and only belatedly reflected their institutional sentiments through a Resolution.)28 The petitioners in G.R. No. 212444 also claim that the constitutionality of the EDCA involves the assertion and protection of a public right, in which they have a personal interest as affected members of the general public.29
The petitioners likewise claim that the EDCA requires the disbursement of public funds and the waiver of the payment of taxes, fees and rentals; thus, the petitioners have the standing to sue as taxpayers.30
They lastly claim that the exchange of notes between the Philippines' Department of National Defense Secretary Voltaire Gazmin and U.S. Ambassador Philip Goldberg31- the final step towards the implementation of the EDCA - rendered the presented issues ripe for adjudication.
The respondents, in response, assert that the petitioners lack standing,32 and that the petitions raise political questions that are outside the Court's jurisdiction to resolve.33
They also argue that the issues the petitions raise are premature.34 The EDCA requires the creation of separate agreements to carry out separate activities such as joint exercises, the prepositioning of materiel, or construction activities. At present, these separate agreements do not exist. Thus, the respondents state that the petitioners are only speculating that the agreements to be forged under the EDCA would violate our laws. These speculations cannot be the basis for a constitutional challenge.
II.A. Locus Standi
The ponencia holds that the petitioners do not have the requisite standing to question the constitutionality of the EDCA, but chooses to give due course to the petitions because of the transcendental importance of the issues these petitions raise.35 In effect, the ponencia takes a liberal approach in appreciating the threshold issue of locus standi.
I agree with the ponencia 's ultimate conclusions on the threshold issues raised. I agree as well that a justiciable issue exists that the Court can pass upon, although on both counts I differ from the ponencia's line of reasoning. Let me point out at the outset, too, that judicial review is only an exercise of the wider judicial power that Article VIII, Section 1 of the Constitution grants and defines. One should not be confused with the other.
Judicial review is part of the exercise of judicial power under Article VIII, Section 1 of the Constitution, particularly when it is exercised under the judiciary's expanded power (i.e., when courts pass upon the actions of other agencies of government for the grave abuse of discretion they committed), or when the Supreme Court reviews, on appeal or certiorari, the constitutionality or validity of any law or other governmental instruments under Section 5(2)(a) and (b) of Article VIII of the Constitution.
A basic requirement is the existence of an actual case or controversy that, viewed correctly, is a limit on the exercise of judicial power or the more specific power of judicial review.36
Whether such case or controversy exists depends on the existence of a legal right and the violation of this right, giving rise to a dispute between or among adverse parties.37 Under the expanded power of judicial review, the actual case or controversy arises when an official or agency of government is alleged to have committed grave abuse of discretion in the exercise of its functions.38
Locus standi is a requirement for the exercise of judicial review39 and is in fact an aspect of the actual case or controversy requirement viewed from the prism of the complaining party whose right has been violated.40
When a violation of a private right is asserted, the locus standi requirement is sharp and narrow because the claim of violation accrues only to the complainant or the petitioner whose right is alleged to have been violated.41
On the other hand, when a violation of a public right is asserted - i.e., a right that belongs to the public in general and whose violation ultimately affects every member of the public - the locus standi requirement cannot be sharp or narrow; it must correspond in width to the right violated. Thus, the standing of even a plain citizen sufficiently able to bring and support a suit, should be recognized as he or she can then be deemed to be acting in representation of the general public.42
Transcendental importance is a concept (a much abused one) that has been applied in considering the requirements for the exercise of judicial power.43 To be sure, it may find application when a public right is involved because a right that belongs to the general public cannot but be important.44 Whether the importance rises to the level of being transcendental is a subjective element that depends on the user's appreciation of the descriptive word "transcendental" or on his or her calibration of the disputed issues' level of importance.
In either case, the use of transcendental importance as a justification is replete with risks of abuse as subjective evaluation is involved.45 To be sure, this level of importance can be used as justification in considering locus standi with liberality,46 but it can never be an excuse to find an actual controversy when there is none. To hold otherwise is to give the courts an unlimited opportunity for the exercise of judicial power - a situation that is outside the Constitution's intent in the grant of judicial power.
In the present cases, a violation of the Constitution, no less, is alleged by the petitioners through the commission of grave abuse of discretion. The violation potentially affects our national sovereignty, security, and defense, and the integrity of the Constitution - concerns that touch on the lives of the citizens as well as on the integrity and survival of the nation. In particular, they involve the nation's capability for self-defense; the potential hazards the nation may face because of our officials' decisions on defense and national security matters; and our sovereignty as a nation as well as the integrity of the Constitution that all citizens, including the highest officials, must protect.
In these lights, I believe that the issues involved in the present case are so important that a plain citizen sufficiently knowledgeable of the outstanding issues, should be allowed to sue. The petitioners - some of whom are recognized legal luminaries or are noted for their activism on constitutional matters - should thus be recognized as parties with proper standing to file and pursue their petitions before this Court.
II.B. Ripeness of the Issues Raised for Adjudication
I agree with the ponencia's conclusion that the cases before this Court, to the extent they are anchored on the need for Senate concurrence, are ripe for adjudication. My own reasons for this conclusion are outlined below.
Like locus standi, ripeness for adjudication is an aspect of the actual case or controversy requirement in the exercise of judicial power.47 The two concepts differ because ripeness is considered from the prism, not of the party whose right has been violated, but from the prism of the actual violation itself.
Of the two basic components of actual case or controversy, namely, the existence of a right and the violation of that right, ripeness essentially addresses the latter component.48 That a right exists is not sufficient to support the existence of an actual case or controversy; the right must be alleged to have been violated to give rise to a justiciable dispute. In other words, it is the fact of violation that renders a case ripe,49 assuming of course the undisputed existence of the right violated.
In the present cases, Article VIII, Section 25 of the Constitution lays down in no uncertain terms the conditions under which foreign military bases, troops, and facilities may be allowed into the country: there should at least be the concurrence of the Senate.
Under these terms, the refusal to allow entry of foreign military bases, troops, and facilities into the country without the required Senate concurrence is a prerogative that the people of this country adopted for themselves under their Constitution: they want participation in this decision, however indirect this participation might be. This prerogative is exercised through the Senate; thus, a violation of this constitutional prerogative is not only a transgression against the Senate but one against the people who the Senate represents.
The violation in this case occurred when the President ratified the EDCA as an executive agreement and certified to the other contracting party (the U.S.) that all the internal processes have been complied with, leading the latter to believe that the agreement is already valid and enforceable. Upon such violation, the dispute between the President and the Filipino people ripened.
The same conclusion obtains even under the respondents' argument that the constitutionality of the EDCA is not yet ripe for adjudication, since it requires the creation of separate agreements to carry out separate activities such as joint exercises, the prepositioning of materiel, or construction activities. To the respondents, the petitioners are merely speculating on their claim of unconstitutionality since these separate agreements do not yet exist.
Indeed, issues relating to agreements yet to be made are not, and cannot be, ripe for adjudication for the obvious reason that they do not yet exist. The question of the EDCA's constitutionality, however, does not depend solely on the separate agreements that will implement it. The fact that an executive agreement had been entered into, not a treaty as required by Article XVIII, Section 25 of the Constitution, rendered the agreement's constitutional status questionable. Thus, when the exchange of notes that signaled the implementation of the EDCA took place, the issue of its compliance with the constitutional requirements became ripe for judicial intervention under our expanded jurisdiction.
II.C. The Political Question Doctrine
Another threshold issue that this Court must settle at the outset, relates to the political question doctrine that, as a rule, bars any judicial inquiry on any matter that the Constitution and the laws have left to the discretion of a coordinate branch of government for action or determination.50
The respondents raise the political question issue as part of their defense, arguing that the issues the petitioners raise are policy matters that lie outside the Court's competence or are matters where the Court should defer to the Executive.51
The political question bar essentially rests on the separation of powers doctrine that underlies the Constitution.52 The courts cannot interfere with questions that involve policy determination exclusively assigned to the political departments of the government.53 The American case of Baker v. Carr54 best describes the standards that must be observed in determining whether an issue involves a political question, as follows:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.55
From among these tests, the presence or absence of constitutional standards is the most relevant under the circumstances of the present consolidated cases.
After analyzing the issues raised, I find the respondents' position partly erroneous and partly premature for a political question doctrine ruling.
This conclusion proceeds from my recognition that a distinction should be drawn in recognizing the constitutional issues before us, some of which are procedural in character while others are substantive ones that require the application of different constitutional provisions.
The petitioners primarily question the constitutional validity of the EDCA for violation of Article XVIII, Section 25 of the 1987 Constitution. They challenge, as well, substantive provisions of the EDCA, among them, those relating to the grant of telecommunication privileges and tax exemptions to American visiting forces, and the EDCA provisions that would allegedly allow the entry of nuclear weapons into the country.
That the EDCA is an agreement that requires concurrence by the Senate before it can be considered valid and enforceable, is an issue that is essentially procedural as it requires that steps be taken before an international agreement can be considered fully valid and enforceable. It is an issue extrinsic to the terms of the EDCA and is properly a threshold issue that must be resolved before the substantive challenges to the EDCA' s validity can be addressed.
Aside from being procedural, the issue relates as well to the standard set by the Constitution that delineates when an international agreement should be a treaty subject to Senate concurrence. The presence of this standard renders the determination of the medium to be used in forging an international agreement - whether as a treaty or as an executive agreement - an issue within the competence and authority of the courts to resolve in their role as guardians of the Constitution.56
Thus, the main issue the petitioners pose - the constitutional status of the EDCA as an executive agreement in light of the mandate of Article XVIII, Section 25 of the Constitution - is not a political question outside the judiciary's competence and authority to resolve. The respondents' argument on this point is therefore erroneous.
If indeed a referral to the Senate is required and no referral has been made, then the EDCA is constitutionally deficient so that its terms cannot be enforced. This finding renders further proceedings on the merits of the substantive issues raised, pointless and unwarranted. There is likewise no point in determining whether the substantive issues raised call for the application of the political question doctrine.57
On the other hand, the examination of the EDCA's substantive contents may be ripe and proper for resolution ·if indeed the EDCA can properly be the subject of an executive agreement. It is at that point when the respondents may claim that the substantive contents of the EDCA involve policy matters that are solely for the President to determine and that the courts may not inquire into under the separation of powers principle.58 It is only at that point when the application of the political question doctrine is called for.
In these lights (particularly, my position on the merits of the procedural issue raised), I find a ruling on the application of the political question doctrine to the substantive issues raised premature and unripe for adjudication; any ruling or discussion I may make may only confuse the issues when a proper petition on the constitutionality of the substantive contents of EDCA is filed.
III. THE FACTS
III.A. Historical, International and Regional Contexts
III.A(l) The Early Years of Philippines-US. Relationship
Active Philippine-American relations started in 1898, more than a century ago, when Commodore George Dewey and his armada of warships defeated the Spanish navy in the Philippines in the Battle of Manila Bay.59 The sea battle was complemented by land assaults by Philippine forces who were then in open rebellion against Spain under the leadership of General Emilio Aguinaldo.60
The complementary effort started a relationship that, from the Philippine end, was characterized by hope of collaboration and assistance in the then colony's quest for independence from Spain.61 But the fulfillment of this hope did not come to pass and was in fact shattered when America, with its own geopolitical interests in mind, decided to fight the Philippine forces and to keep the Philippines for itself as a colony. The American objective was fully realized under the Treaty of Paris between Spain and the U.S., when the Philippines was handed by Spain to the U.S. as a colony.62
The result, of course, was inevitable as the Philippine forces were not then fighting for a change of masters but for independence. The Philippine forces fought the Americans in the Philippine-American war, and lost.63
Thus, a new colonizer took Spain's place. Unlike the Spanish colonial rule, however, one redeeming feature of the American colonial rule was the introduction of the concepts of democracy and governance.
As a colony, the Philippines, played a distinct role as the American outpost in the Far East as the American geopolitical interests slowly grew from the First World War years. By the end of the Second World War, the U.S.' international primacy was confirmed as the leader of the victor-nations. This international leadership role became sole leadership when the Soviet Union collapsed in the late 1980s. Thus, the U.S. now stands as the only global superpower whose military, economic, cultural, and technological reach and influence extend over all continents.64
III.A(2) The Post-W. W. II Years
It was soon after Philippine independence, as the U.S. superpower status was rising, that the U.S. and the Philippines forged the Military Bases Agreement of 1947 (1947 MBA) and the 1951 MDT. The 1947 MBA was the agreement specific to the U.S. bases, troops, and facilities in the Philippines,65 while the 1951 MDT was the overarching document, entered into and ratified by the two countries as a treaty, to define the Philippine-American defense relationship in case of an armed attack by a third country on either of them.66 As its title directly suggests, it is a defense agreement.
The solidity of the R.P.-U.S. relationship that started in the colonizer-colony mode, shifted to defense/military alliance (through the MBA, MDT, and their supplementary agreements) after Philippine independence, and began to progressively loosen as the Philippines tracked its own independent path as a nation. Through various agreements,67 the American hold and the length of stay of American military bases in the Philippines progressively shrunk.
The death knell for the U.S. military bases started sounding when a new Philippine Constitution was ratified in 1987. The new Constitution provides that after the expiration of the agreement on military bases, no foreign military bases, troops or facilities shall be allowed except through a treaty concurred in by the Senate or with the direct consent of the Filipino people if Congress would require this mode of approval.68
The actual end of the military bases came in 1991 when the 1947 MBA expired with no replacement formal arrangement in place except the 1951 MDT.69 For some years, R.P.-U.S. relationship on defense/military matters practically froze. The thaw only came when the 1998 VFA was negotiated and agreed upon as a treaty that the Philippine Senate concurred in.
III.A(3) The U.S. 's "Pivot to Asia" Strategy
During the latter part of the first term of the Obama Administration, the U.S. announced a shift in its global strategy -in favor of a military and diplomatic "pivot" or "rebalance" toward Asia.70 The strategy involved a shift of the U.S. 's diplomatic, economic, and defense resources to Asia, made urgent by "the rise of Chinese regional power and influence, and China's apparent inclination to exercise its burgeoning military power in territorial disputes with its neighbors."71 These disputes affected sea lanes that are vital to the U.S. and its allies; hence, the U.S. was particularly concerned with their peaceful resolution.72 Critical to the strategy is the projection of American power and influence worldwide.
The key to the new strategy in the military-political area is "presence: forward deployment of US. military forces; a significant tempo of regional diplomatic activity (including helping Asian countries resolve disputes that they cannot resolve themselves); and promoting an agenda of political reform where it is appropriate. "73 This meant, among others, the strengthening of American military alliance with Asian countries, including the Philippines.
The "pivot" has a direct relevance to Philippine concerns since it was prompted, among others, by "China's growing military capabilities and its increasing assertiveness of claims to disputed maritime territory, with implications for freedom of navigation and the United States' ability to project power in the region."74 The opening of new areas for military cooperation with the Philippines is among the announced features of the "pivot."75
III.A(4) The EDCA
It was soon after the launch of the 'Jiivot" strategy that the initiatives for the EDCA came. The EDCA, of course, did not introduce troops into the country for the first time, as the 1998 VFA already ushered in the presence of U.S. military troops on a rotational but temporary basis.
What the EDCA brought with it was the concept of "agreed locations" to which the U.S. has "unimpeded access" for the refueling of aircraft; bunkering of ships; pre-positioning and storage of equipment, supplies and materials; the introduction of military contractors into the agreed locations; and the stationing and deployment point for troops.76
In these lights, the confirmed and valid adoption of the EDCA would make the Philippines an active ally participating either as a forward operating site (FOS) or Cooperative Security Location (CSL) in the American "pivot" strategy or, in blunter terms, in the projection and protection of American worldwide power. FOS and CSL shall be explained under the proper topic below.
All these facts are recited to place our reading of the EDCA in proper context - historically, geopolitically, and with a proper appreciation of the interests involved, both for the Philippines and the U.S.
The U.S. is in Asia because of the geopolitical interests and the world dominance that it seeks to maintain and preserve.77 Asia is one region that has been in a flux because of the sense of nationalism that had lain dormant among its peoples, the economic progress that many of its countries are experiencing as the economic winds shift to the East, and the emergence of China that - at the very least - is now gradually being recognized as a regional power with the potential for superpower status.78 The Philippines itself is encountering territorial problems with China because of the latter's claims in the West Philippine Sea; the Philippines has chosen the path of peace in the dispute through international arbitration.79
EDCA and Article XVIII, Section 25 of the Constitution, in their larger regional signification, mean that the Philippines would thereafter, not only be bound as an American ally under the 1951 MDT, but as an active participant as "pivot" and projection points in the grand American strategy in Asia.
How the Philippines will react to all these developments is largely for the Executive and the people (through the Legislature) to determine. In making its decisions, they must - at the very least - show one and all that our country is entitled to respect as an independent and sovereign nation. This respect must come primarily from within the Philipines and the Filipinos themselves, from the nation's own sense of self-respect: in negative terms, the Filipino nation cannot attain self-respect unless it shows its respect for its own Constitution - the only instrument that binds the whole nation.
IV. THE PRESIDENT'S ROLE IN GOVERNANCE AND ITS LIMITS
This discussion is made necessary by the ponencia' s patent misconceptions regarding the role the President plays in governance as chief executive and implementor of policies and the laws.
IV.A. The Ponencia and My Objections
In upholding the constitutionality of the EDCA, the ponencia holds that the President's power and duty to ensure the faithful execution of our laws include the defense of our country as the commander-in-chief of the country's armed forces.80 It contends that these powers, combined with the President's capacity as the country's sole organ in foreign affairs, empower the President to enter into international agreements with other countries and give him the discretion to determine whether an international agreement should be in the form of a treaty or executive agreement.
The patent misconception begins when the ponencia asserts that the President cannot function with crippled hands: "the manner of the President's execution of the law, even if not expressly granted by the law, is justified by necessity and limited only by law since he must 'take necessary and proper steps to carry into execution the law. "'81 It further adds that it is the President's prerogative to do whatever is legal and necessary for the Philippines' defense interests.82
While acknowledging the Constitution's command that the entry of foreign military bases, troops, and facilities must be in a treaty, the ponencia asserts that the EDCA should be examined in relation with this requirement alone, as the President's wide authority in external affairs should be subject only to the limited amount of checks and restrictions under the Constitution.83
It is within this framework that the ponencia concludes that the requirement under Article XVIII, Section 25 of the Constitution is limited to the initial entry of foreign military bases, troops, and facilities. Thus, once a treaty has allowed the entry of foreign military bases, troops, and facilities into the Philippines, the ponencia posits that the President may enter into subsequent executive agreements that involve "detail adjustments" of existing treaties.84
I cannot fully agree with the ponencia's approach and with its conclusions.
First and foremost, the ponencia overlooks that as Chief Executive, the President's role is not simply to execute the laws. This important function is preceded by the President's (oremost duty to preserve and defend the Constitution, the highest law of the land. The President's oath, quoted by the ponencia itself, in fact, states:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.85 [Emphasis supplied]
The supremacy of the Constitution means that in the performance of his duties, the President should always be guided and kept in check by the safeguards that were crafted by the framers of the Constitution and ratified by the people. The Constitution prescribes the limitations to the otherwise awesome powers of the Executive who wields the power of the sword and shares in the power of the purse.
I also do not agree that constitutional limitations, such as the need for Senate concurrence in treaties, can be disregarded if they unduly "tie the hands" of the President. 86 These limitations are democratic safeguards that place the responsibility over national policy beyond the hands of a single official. Their existence is the hallmark of a strong and healthy democracy. In treaty-making, this is how the people participate - through their duly-elected Senate - or directly when the Congress so requires. When the Constitution so dictates, the President must act through the medium of a treaty and is left with no discretion on the matter. This is the situation under Article XVIII, Section 25 of the Constitution, whose application is currently in dispute.
Let it be noted that noble objectives do not authorize the President to bypass constitutional safeguards and limits to his powers. To emphasize this point, we only need to refer to Article VI, Section 23(2) of the Constitution:
(2) In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such power shall cease upon the next adjournment thereof. [Emphasis supplied]
Thus, the President cannot, by himself, usurp the prerogatives of a co-equal branch to carry out what he believes is necessary for the country's defense interests. His position as the Commander-in-Chief of the Armed Forces of the Philippines (AFP) does not give him the sole discretion to increase our military's defensive capabilities; his role as commander-in-chief only gives him control of the military's chain of command. It grants him the power to call out the armed forces to prevent/suppress lawless violence, invasion, insurrection, or rebellion.87
The modernization of the military, in particular, is a joint responsibility of the political branches of the State because the Congress is responsible for crafting relevant laws88 and for allocating funds for the AFP through the General Appropriations Act.89 The increase or decrease of funds and the extent of defense initiatives to be undertaken are national policy matters that the President cannot undertake alone.
IV.B. The President's Foreign Relations Power should be Interpreted in the Context of the Separation of Powers Doctrine
We cannot also interpret a provision in the Constitution in isolation and separately from the rest of the Constitution. Similarly, we cannot determine whether the Executive's acts had been committed with grave abuse of discretion without considering his authority in the context of the powers of the other branches of government.
While the President's role as the country's lead official in the conduct of foreign affairs is beyond question, his authority is not without limit. When examined within the larger context of how our tripartite system of government works (where each branch of government is supreme within its sphere but coordinate with the others), we can see that the conduct of foreign affairs, particularly when it comes to international agreements, is a shared function among all three branches of government.
The President is undeniably the chief architect of foreign policy and is the country's representative in international affairs.90 He is vested with the authority to preside over the nation's foreign relations which involve, among others, dealing with foreign states and governments, extending or withholding recognition, maintaining diplomatic relations, and entering into treaties.91 In the realm of treaty-making, the President has the sole authority to negotiate with other States.92
IV.B(l) Separation of Powers and the Treaty-Making Process
This wide grant of authority, however, does not give him the license to conduct foreign affairs to the point of disregarding or bypassing the separation of powers that underlies our established constitutional system.
Thus, while the President has the sole authority to negotiate and enter into treaties, Article VII, Section 21 of the 1987 Constitution at the same time provides the limitation that two-thirds of the members of the Senate should give their concurrence for the treaty to be valid and effective.
Notably, this limitation is a not a new rule; the legislative branch of government has been participating in the treaty-making process by giving (or withholding) its consent to treaties since the 1935 Constitution. Section 10 (7), Article VII of the 1935 Constitution provides:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties x x x.
This tradition of legislative participation continued despite our presidential-parliamentary form of government under the 1973 Constitution, that is markedly different from the tripartite form of government that traditionally prevailed in the country. Section 14(1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
That we have consistently included the participation of the legislative branch in the treaty-making process is not without an important reason: it provides a check on the Executive in the field of foreign relations. By requiring the concurrence of the Legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balances necessary in the nation's pursuit of political maturity and growth.
Under this system, the functions of government are divided among three branches of government, each one supreme within its own sphere: the executive administers and enforces laws; the legislature formulates and enacts laws; and the judiciary settles cases arising out of the enforcement of these laws93 The requirement of Senate concurrence to the executive's treaty-making powers is a check on the prerogatiye of the Executive, in the same manner that the Executive's veto on laws passed by Congress94 is a check on the latter's legislative powers.
Even the executive agreements that the President enters into without Senate concurrence has legislative participation - they are implementations of existing laws Congress has passed or of treaties that the Senate had assented to.95 The President's authority to negotiate and ratify these executive agreements springs from his power to ensure that these laws and treati.e s are executed.96
The judicial branch of government's participation in international agreements is largely passive, and is only triggered when cases reach the courts. The courts, in the exercise of their judicial power, have the duty to ensure that the Executive and Legislature stay within their spheres of competence;97 they ensure as well that constitutional standards and limitations set by the Constitution for the Executive and the Congress to follow are not violated.
Article VIII, Section 5 of the Constitution is even more explicit, as it gives the Supreme Court the jurisdiction "to review by appeal or certiorari all cases in which the constitutionality or validity of any treaty, international or executive agreement, law xx x is in question."
Thus, entry into international agreements is a shared function among the three branches of government. In this light and in the context that the President's actions should be viewed under our tripartite system of government, I cannot agree with the ponencia's assertion that the case should be examined solely and strictly through the constitutional limitation found in Article XVIII, Section 25 of the Constitution.
IV.B(2) Standards in Examining the President's Treaty-Making Powers
Because the Executive's foreign relations power operates within the larger constitutional framework of separation of powers, I find the examination of the President's actions through this larger framework to be the better approach in the present cases. This analytical framework, incidentally, is not the result of my original and independent thought; it was devised by U.S. Supreme Court Associate Justice Robert Jackson in his Concurring Opinion in Youngstown Sheet & Tube Co. v. Sawyer.98
Justice Jackson's framework for evaluating executive action categorizes the President's actions into three: first, when the President acts with authority from the Congress, his authority is at its maximum, as it includes all the powers he possesses in his own right and everything that Congress can delegate.99
Second, "when the President acts in the absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a [twilight zone where] he and Congress may have concurrent authority, or where its distribution is uncertain."100 In this situation, presidential authority can derive support from "congressional inertia, indifference or quiescence."101
Third, "when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,"102 and the Court can sustain his actions "only by disabling the Congress from acting upon the subject."103
This framework has been recently adopted by the U.S. Supreme Court in Medellin v. Texas,104 a case involving the President's foreign affairs powers and one that can be directly instructive in deciding the present case.
In examining the validity of an executive act, the Court takes into consideration the varying degrees of authority that the President possesses. Acts of the President with the authorization of Congress should have the "widest latitude of judicial interpretation"105 and should be "supported by the strongest of presumptions."106 For the judiciary to overrule the executive action, it must decide that the government itself lacks the power. In contrast, executive acts that are without congressional imprimatur would have to be very carefully examined.
IV.B(3) The Senate Objection to EDCA as an Executive Agreement
In the present cases, the President's act of treating the EDCA as an executive agreement has been disputed by the Senate, although the Senate is not an active party in the present cases.
On November 10, 2015, the Senate sent the Supreme Court a copy of Senate Resolution No. 1414107 expressing its sentiment that the EDCA should have been entered into in the form of a treaty. Furthermore, and as will be explained in the succeeding portions of this Dissenting Opinion, the EDCA's provisions are not all within the terms of the two treaties properly ratified by the Senate - the 1951 MDT and 1998 VFA; hence, the President could not have drawn his authority from these agreements.
Thus, contrary to the ponencia's assertion that the President's act of treating the EDCA as an executive agreement should be subject to the "least amount of checks and restrictions under the Constitution,"108 this presidential action should actually be very carefully examined, in light of the Senate's own expressed sentiments on the matter.
The mandatory character of the executive-legislative power sharing should be particularly true with respect to the EDCA, as its adoption signifies Philippine participation in America's pivot strategy by making our country one of the "pivot" or projection points that would enforce America's military strategy. In taking this kind of step, the Senate must simply be there to give its consent, as the Constitution envisions in situations involving the entry of foreign military bases, troops, and facilities into the country.
In these lights, I propose that we examine the President's act of treating the EDCA not simply by the standard of whether it complies with the limitation under Article XVIII, Section 25 of the Constitution, but in the context of how our government functions, and of other relevant provisions in the Constitution.
IV.C. Constitutional Standards in Allowing the Entry of Foreign Military Bases, Troops, and Facilities in the Philippines
IV.C(l) Article VII, Section 21 of the Constitution and Treaty-Making
In general, the President's foreign affairs power must be exercised in compliance with Article VII, Section 21 of the Constitution, which requires the submission of treaties the President ratified, to the Senate for its concurrence. The Senate may either concur in, or withhold consent to, the submitted treaties.
Significantly, not all the intenmtional agreements that the President enters into are required to be sent to the Senate for concurrence. Jurisprudence recognizes that the President may enter into executive agreements with other countries,109 and these agreements - under the proper conditions - do not require Senate concurrence to be valid and enforceable in the Philippines.110
IV.C(2) Treaties and Executive Agreements under Article VII, Section 21
Where lies the difference, it may well be asked, since both a treaty and an executive agreement fall under the general title of international agreement?
An executive agreement emanates from the President's duty to execute the laws faithfully.111 They trace their validity from existing laws or from treaties that have been authorized by the legislative branch of government.112 In short, they implement laws and treaties.
In contrast, treaties are international agreements that do not originate solely from the President's duty as the executor of the country's laws, but from the shared function that the Constitution mandates between the President and the Senate.113 They therefore need concurrence from the Senate after presidential ratification, in order to fulfill the constitutional shared function requirement.114
Jurisprudential definitions of treaties and executive agreements are conceptually drawn from these distinctions although in Bayan Muna v. Romulo,115 we simply differentiated treaties from executive agreements in this wise:
Article 2 of the Vienna Convention on the Law of Treaties: An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.116 [Emphases supplied]
Bayan Muna likewise did not distinguish between treaties and executive agreements in terms of their binding effects on the contracting States concerned.117 But neither one can contravene the Constitution.
This ambiguity perhaps might have been the root of the general statement that the Executive generally has the discretion to determine whether an international obligation should be in the form of a treaty or an executive agreement. This general statement, however, is far from complete and should be qualified because the Executive's exercise of discretion is affected and should be dictated by the demands of the enforceability of the obligations the international agreement creates in the domestic sphere.
Between a treaty and an executive agreement, a treaty exists on a higher plane as it carries the authority of the President and the Senate.118 Treaties have the status, effect, and impact of statutory law in the Philippines; they can amend or prevail over prior statutory enactments.119
Executive agreements - which exist at the level of implementing rules and regulations or administrative orders in the domestic sphere - carry no such effect.120 They cannot contravene statutory enactments and treaties and would be invalid if they do so.121
Again, this difference in impact is traceable to the source of their authority; since a treaty has the approval of both the President and the Senate, it has the same impact as a statute. In contrast, since an executive agreement springs from the President's power to execute laws, it cannot amend or violate existing treaties, and must be in accord with and be made pursuant to existing laws and treaties.122
Accordingly, the terms and objectives of the presidential entry into an international agreement dictates the form the agreement must take. When an international agreement is made merely to implement an existing law or treaty, then it can properly take the form of an executive agreement.123
In contrast, when an international agreement involves the introduction of a new subject matter or the amendment of existing agreements or laws and has not passed the required executive and legislative processes, then it should properly be in the form of a treaty.124
To reiterate, the consequence of the violation of this norm impacts on the enforceability of the international agreement in the domestic sphere; should an executive agreement amend or contravene statutory enactments and treaties, then it is void and cannot be enforced in the Philippines for lack of the proper authority on the part of the issuer.
In judicial terms, the distinctions and their consequences mean that an executive agreement that creates new obligations or amends existing ones, has been issued with grave abuse of discretion amounting to a lack of or in excess of jurisdiction, and can he judicially nullified under the courts' power of judicial review.
IV.C(3) Joint Reading of Article VII, Section 21 and Article XVIII, Section 25
The dynamics that Article VII, Section 21 embody, should be read into Article XVIII, Section 25 of the 1987 Constitution, which specifically covers and applies to the entry of foreign military bases, troops, or facilities into the country.
It is on the basis of this joint reading that the ponencia's conclusion - that Article XVIII, Section 25 applies only to the initial entry of foreign military bases, troops, and facilities in the country- is essentially incorrect.
Article XVIII, Section 25 does not provide for any such limitation in its applicability. Neither is there anything in the language of the provision that remotely implies this consequence. What it simply states is that foreign military bases, troops, and facilities may only be present in Philippine soil in accordance with a treaty concurred in by the Senate.
When the terms of Article XVIII, Section 25 treaty does not provide for situations or arrangements subsequent to the initial entry of foreign military bases, troops, or facilities in the country and the subsequent arrangements are still attributed to the same treaty made pursuant to Section 25, the combined reading of Article VII, Section 21 and Article XVIII, Section 25 must now come into play.
This combined reading simply means that after the initial entry of foreign military bases, troops, or facilities in the Philippines under a duly ratified treaty, subsequent arrangements relating to foreign military bases, troops or facilities that are claimed to be based on .the same treaty, should be examined based on the treaty-executive agreement distinctions recognized by jurisprudence under Article VII, Section 21 of the Constitution.
In other words, any subsequent international agreement referring to military bases, troops or facilities should be examined based on whether it creates a new obligation or implements an existing one. The determination of this question rests with the Executive but the treaty-executive agreement distinctions should limit the Executive's discretion when the new international agreement relates to a new obligation (or a change in an existing obligation) as the presence of foreign military bases, troops, or facilities in the Philippines should then be effected through another treaty.
To put it more bluntly, Article XVIII, Section 25 effectively removes the Executive's discretion in deciding the form of an international agreement because of this provision's explicit directive to use a treaty as the medium for new obligations created.
In Bayan v. Zamora,125 our conclusion supported this position. We explained that Article XVIII, Section 25 makes no distinction as to whether the presence of foreign military bases, troops, or facilities may be transient or permanent.126 By concluding that the permanence of foreign military bases, troops, or facilities is immaterial to the application of Article XVIII, Section 25, we effectively acknowledged that subsequent agreements that amend or introduce new obligations to existing treaties that previously allowed the entry of foreign military bases, troops or facilities, should be the subject of another treaty as they may enter the country on varying grounds, lengths or periods of time - all of which can change the nature of the obligations under existing treaties.
IV.C(4) The Dissent's Analytical Approach
Given these parameters, I propose that we examine the constitutionality of the Executive's act of entering into the obligations found in the EDCA in the form of an executive agreement with these two questions:
(1) Does the EDCA involve the introduction into the Philippines of foreign military bases, troops, or facilities that call for its examination under Article XVIII, Section 25?
(2) Does the EDCA impose new obligations, or amend or go beyond existing ones, regarding the presence of foreign military bases, troops, or facilities in the Philippines?
If the EDCA introduces foreign military bases, troops, or facilities in the Philippines within the contemplation of Article XVIII, Section 25 of the 1987 Constitution, and if these obligations are different from those found in our existing treaty obligations with the U.S., then the EDCA cannot be enforced in the Philippines without the Senate's concurrence. The ponencia is then incorrect and the Dissent must prevail.
Conversely, if the EDCA merely implements present treaty obligations - particularly those under the 1951 MDT and the 1998 VFA - then the President was well within his powers in the execution of our present treaty obligations. The ponencia is correct and the Dissent therefore fails.
V. THE APPLICATION OF ARTICLE XVIII, SECTION 25 TO THE EDCA
V.A. The Article XVII4 Section 25 Dispute
When the subject of an international agreement falls under Article XVIII, Section 25 of the Constitution, the President - by constitutional command - must enter into a treaty subject to the concurrence of the Senate and, when Congress so desires of the people through a national referendum.
This rule opens the door for Court intervention pursuant to its duty to uphold the Constitution and its further duty (under its power of judicial review) to pass upon any grave abuse of discretion committed by any official or agency of government. It is under this constitutionally-mandated terms that this Court invokes its power to review the constitutionality of the President's actions in handling the EDCA.
Within this framework the issue these cases present is clear. The bottom line question is whether the President gravely abused his discretion in executing the EDCA as an executive agreement; the alleged existence of grave abuse of discretion constitutes the actual case or controversy that allows the exercise of judicial power. Whether grave abuse exists, in turn, depends on the determination of whether the terms of the EDCA imposed new or amended existing obligations involving foreign military bases, troops, and facilities in the Philippines.
If the EDCA does, then it should have been in the form of a treaty submitted to the Senate for its concurrence. In resolving this question, I am guided first, by the text of the, Constitution itself and the meaning of its operative words in both their original and contemporaneous senses; second, by the spirit that motivated ,the framing of Article XVIII, Section 25; and third, by jurisprudence interpreting this provision.
The ponencia lays the premise that the President may enter into an executive agreement on foreign military bases, troops, or facilities if:
(a) it is not the instrument that allows the presence of foreign military bases, troops, or facilities; or
(b) it merely aims to implement an existing law or treaty.127
The ponencia follows this premise with the position that Article XVIII, Section 25 refers only to the initial entry of bases, troops, or facilities, and not to the activities done after entry.128
In construing Article XVIII, Section 25, the ponencia invokes the rule of verba legis, a cardinal rule of construction stating that when the law is clear and free from any doubt or ambiguity, then there is no room for construction or interpretation, only application.129 The law must be given its literal meaning and applied without attempted interpretation.130 The ponencia asserts that the plain meaning of "allowed in" refers solely to the initial entry.131 Thus, after entry, any subsequent acts involving foreign military troops, bases, or facilities no longer fall under the coverage of Article XVIII, Section 25.132
I believe that the ponencia's approach and interpretation are incorrect because they are overly simplistic. The proper understanding of Article XVIII, Section 25 must take into account the many considerations that bear upon its plain terms, among them, the treaty-executive agreement distinctions under Article VII, Section 21 that I discussed above; the history of Article XVIII, Section 25; the motivations that drove the framers to adopt the provision; and the current and contemporaneous developments and usages that give full and effective meaning to the provision.
Separately from textual interpretation considerations and as part of the history of Article XVIII, Section 25, the basic concept of sovereignty that underlies it should not be forgotten.133 Sovereignty means the full right and power of the nation to govern itself, its people, and its territory without any interference from outside sources or entities.134 Within its territory, a nation reigns supreme. If it will allow interference at all, such interference should be under the terms the nation allows and has accepted;135 beyond those terms, the primacy of sovereignty is the rule.136
Thus, if interference were to be allowed at all, or if exceptions to full sovereignty within a territory would be allowed, or if there would be any ambiguity in the extent of an exception granted, the interference, exception or ambiguity must be resolved in favor of the fullest exercise of sovereignty under the obtaining circumstances. Conversely, if any ambiguity exists at all in the terms of the exception or in the terms of the resulting treaty, then such terms should be interpreted restrictively in favor of the widest application of the restrictions embodied in the Constitution and the laws.
The ponencia cannot be incorrect in stating the rule that when terms are clear and categorical, no need for any forced constitutional construction exists;137 we need not divine any further meaning but must only apply terms in the sense that they are ordinarily understood.
A flaw, however, exists in the ponencia's application of verba legis as Article XVIII, Section 25 is neither plain nor that simple.
As pointed out above, it must be read together with Article VII, Section 21 for the general rules on the treaty-making process. It also expressly refers to a historical incident - the then coming expiration of the 1947 MBA. From these take-off points, the Article XVIII, Section 25 proceeds to a list of the matters it specifically addresses - foreign military bases, troops, or facilities.
All these bring up the question that has so far been left undiscussed - what are the circumstances that led to the expiration of the 1947 MBA and what are the foreign military bases, troops, and facilities that Article XVIII, Section 25 refers to?
V.B. The History and Intent of Article XVIII, Section 25
The history of Article XVIII, Section 25 of the Constitution is practically summed up in the introductory phrase of the provision - "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases xxx. "
Purely and simply, the framers of the Constitution in 1986 then looked forward to the expiration of the U.S. bases coming in 1991 and wanted the terms of any future foreign military presence governed by the Constitution itself. Behind this intent is the deeper policy expressed under Article II, Section 7 of the Constitution –
The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty. territorial integrity, national interest, and the right to self-determination.
During the constitutional deliberation on Article XVIII, Section 25, two views were espoused on the presence of military bases in the Philippines. One view was that espoused by the anti-bases group; the other group supported the view that this should be left to the policy makers.
Commissioner Adolfo Azcuna expressed the sentiment of the first group when he stated in his privilege speech on 16 September 1986 that:
After the agreement expires in 1991, the question therefore, is: Should we extend a new treaty for these bases to stay put in 1991 in our territory? The position of the committee is that it should not, because the presence of such bases is a derogation of Philippine sovereignty.
It is said that we should leave these matters to be decided by the executive, since the President conducts foreign relations and this is a question of foreign policy. I disagree, Madam President. This is not simple a question of foreign policy; this is a question of national sovereignty. And the Constitution is anything at all, it is a definition of the parameters of the sovereignty of the people.138
On the other hand, the second group posited that the decision to allow foreign bases into the country should be left to the policy makers. Commissioner Jose Bengzon expressed the position of this group that:
x x x this is neither the time nor the forum to insist on our views for we know not what lies in the future. lt would be foolhardy to second-guess the events that will shape the world, our region and our country by 1991. It would be sheer irresponsibility and a disservice to the highest calibre to our own country if we were to tie down the hands of our future governments and future generations.139
Despite his view that the presence of foreign military bases in the Philippines would lead to a derogation of national security, Commissioner Azcuna conceded that this would not be the case if the agreement would allow the foreign military bases, troops, and facilities to be embodied in a treaty.140
After a series of debates, Commissioner Ricardo Romulo proposed an alternative formulation that is now the current Article XVIII, Section 25.141 He explained that this is an explicit ban on all foreign military bases other than those of the U.S.142 Based on the discussions, the spirit of the basing provisions of the Constitution is primarily a balance of the preservation of the national sovereignty and openness to the establishment of foreign bases, troops, or facilities in the country.
Article XVIII, Section 25 imposed three requirements that must be complied with for an agreement to be considered valid insofar as the Philippines is concerned. These three requirements are: (1) the agreement must be embodied in a treaty; (2) the treaty must be duly concurred in by 2/3 votes of all the members of the Senate;143 and (3) the agreement must be recognized as a treaty by the other State.
On the second requirement, the two-thirds concurrence of all the members of the Senate, the people's representative,144 may be viewed as the people's "voluntary submission" of their sovereignty so they can reap the greater benefits of the agreement that the President, as policymaker, entered into.
When the Congress so requires, the agreement should be ratified by a majority of the votes cast by the people in a national referendum held for that purpose.145 This additional requirement evinces the framers' intent to emphasize the people's direct participation in treaty-making.
In Bayan v. Zamora,146 the Court relaxed the third requirement when it ruled that it is sufficient that "the other contracting party accepts or acknowledges the agreement as a treaty." In that case, since the U.S. had already declared its full commitment to the 1998 VFA,147 we declared that it was unnecessary for the U.S. to further submit the agreement to the U.S. Senate.148
This history highlights the importance of the issue now before us, and stresses as well how seriously the Constitution regards the Senate concurrence requirement. Thus, the issue can neither be simply glossed over nor disregarded on the basis of stretched legal technicalities. In case of doubt, as above discussed, such doubt should be resolved strictly in favor of what the Constitution requires in its widest sense.
V.C. Historical Roots of the U.S. Bases in the Philippines
As a U.S. colony after the Treaty of Paris of 1898, the whole Philippines could be equated to one big American base: the U.S. had sovereignty and had a free hand on how to deal with defense matters and its military forces in the Philippines.
The Tydings-McDuffie Act of 1934 provided for the Philippines' self-government and specified a procedural framework for the drafting of a constitution for the government of the Commonwealth of the Philippines149 within two years from the Act's enactment.150 The Act, more importantly, mandated the recognition by the U.S. of the independence of the Philippine Islands as a separate and self-governing nation after a ten-year transition period.151
Prior to independence, the Act allowed the U.S to maintain military forces in the Philippines and to caH all military forces of the Philippine government into U.S. military servicc.152 The Act empowered the U.S. President, within two years following independence, to negotiate for the establishment of U.S. naval reservations and fueling stations in the Philippine Islands.153
The negotiations for American bases that took place after independence resulted in the 1947 MBA.
V.C(l) The 1947 Military Bases Agreement
The 1947 MBA between the Philippines and the U.S. was signed on March 16, 1947. The agreement officially allowed the U.S. to establish, maintain, and operate air and naval bases in the country.154 It provided for about 23 listed bases and facilitjes for use by Americans for a period of 99 years.155 The most importantofthese bases were the 180,000-acre Clark Air Base in Pampanga, then the biggest American airbase outside of the continental U.S.A., and the Subic Naval Base in Zambales.
The bases covered by the 1947 MBA were fixed bases where American structures and facilities had been built and arms, weapons, and equipment were deployed and stored, and where troops and civilian personnel were stationed, together with their families.
Other provisions of the 29-article 1947 MBA were the following:
The bases were properties over which the U.S. originally exercised sovereignty but this was subsequently transferred to the Philippines pursuant to the Romulo-Murphy Agreement of 1979. After the transfer, the U.S. and its armed forces and personnel were granted rent-free access up to the expiration of the Agreement.156
The bases were for the mutual protection and cooperation of the two countries and for this purpose were for their use as U.S. and Philippine military installations.157
The U.S. had the right, power and authority necessary for the establishment, operation, and defense of the bases and their control,158 specifically:
To operate, maintain, utilize, occupy, garrison, and control the bases;
To improve and deepen the harbors, channels and entrances and anchorage, and to construct and maintain necessary roads and bridges accessing the bases;
To control the operation and safety of the bases and all the structures and facilities in them;
To acquire right-of-way by agreement and to construct telecommunication and other facilities;
To construct, install, maintain and employ on any base any type of facilities, weapons, substance, device, or vessel as may be necessary;
To bring into the Philippines members of the U.S. military forces and U.S. nationals employed under contract by the U.S. with the families, as well as technical personnel of other nationalities not otherwise excluded from the Philippines.
The Philippine government was prohibited from granting any bases to other nations without U.S. consent.159
The U.S. was pe1n1itted to recruit Filipino citizens, on voluntary basis, for service in the American military.160
The U.S. base comrnanders had the right to tax, distribute utilities, hand out licenses, search without warrants, and deport undesirables.161
Complementing the signing of the 1947 MBA was the signing of the Military Assistance Agreement of 1947 and the 1951 MDT.
Over the years, various provisions of the 1947 MBA were amended, gradually delimiting U.S. control over the bases.162 On September 16, 1966, the Ramos-Rusk Agreement reduced its term to 25 years starting from that year.
A review of the 1947 MBA in 1979 led to the formal transfer of control of Clark and Subic bases to the Philippines.163 Thus, these bases became Philippine military installations containing U.S. military facilities. The review also provided that each base would be under a Filipino base commander; the Philippine flag was to fly singly in the bases; the Philippine government was to provide security along the bases' perimeters; and the review of the agreements would take place every five years starting in 1979.164
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security that would have extended the life of the bases for 10 more years.165 The 1947 MBA was terminated on December 21, 1992 when the 25-year tenure lapsed. This prompted the U.S. to vacate its bases effective at the end of December 1992.166 The departure of the U.S. warship Bellau Wood marked the closure of American military bases in the country.167
With the expiration of the 1947 MBA, the detailed arrangements for the presence of U.S. military forces and facilities in the Philippines, particularly those listed above, similarly ended, leaving only the general arrangements under the 1951 Mutual MDT.
V.C(2) The 1951 Mutual Defense Treaty
The 1951 MDT was signed on August 30, 1951, while the U.S. was establishing a number of bilateral defense alliances with key Asian States as it positioned itself to contain communist expansion in Asia in the period following World War II and the Korean War. Despite periods of drift, its relationship with its Asian allies provided the U.S. support and assistance throughout the Cold War and during the Vietnam war.168
The 1951 MDT provided the general terms of the defense alliance between the U.S. and the Philippines; the more detailed terms were reflected in the earlier 1947 MBA that expired and was not renewed in 1991.
The 1947 MBA and the 1951 MDT were the counterparts of U.S. agreements with the North Atlantic Treaty Organization (NATO) countries. One of those agreements was the NATO Status of Forces Agreement (NATO-SOFA), a multilateral agreement that applies to all the NATO-member countries.169
After the World War II, the U.S. maintained various European bases.170 Despite the presence of these bases, the U.S. entered into the NATO-SOFA on June 19, 1951, to define the terms for the deployment and status of its military forces in these countries.171 Most of the other NATO states, however, required ratification and implementing legislation, with additional agreements to implement the NATO-SOFA.172
The 1951 MDT provides for an alliance - that both nations would support one another if either the Philippines or the U.S. would be attacked by an external party.173 It states that each party shall either, separately or jointly, through mutual aid, acquire, develop and maintain their capacity to resist armed attack.174 It provkfos tor a mode of consultations to determine the 1951 MDT's appropriate implementation measures and when either of the parties determines that their tenitorial integrity, political independence, or national security is threatened by armed attack in the Pacific.175 An attack on either party will be acted upon in accordance with their constitutional processes and any armed attack on either party will be brought to the attention of the United Nations for immediate action.176
The accord defines the meaning of an armed attack as including armed attacks by a hostile power on a metropolitan area of either party, on the island territories under their jurisdiction in the Pacific, or on their armed forces, public vessels, or aircrafts in the Pacific.177 The U.S. government guaranteed to defend the security of the Philippines against external aggression but not necessarily against internal subversion. The treaty expressly stipulates that its terms are indefinite and would last until one or both parties terminate the agreement by a one-year advance notice.178 The treaty subsequently became the basis for an annual joint exercise, known as Balikatan, between the Philippines and the U.S.179
On the whole, the 1951 MDT embodied an alliance and defense agreement, focused as it is on joint action and defenses against armed external attacks. It made no provision for bases, troops, or facilities which the 1947 MBA contained and which lapsed when the MBA's term expired.
V.C(3) The 1998 Visiting Forces Agreement
The 1998 VFA came after the expiration of the 1947 MBA in 1991 and opened a limited window for the presence of American troops in the Philippines. It was entered into during the era when the U.S. was envisioning "access" as a new approach in maintaining its presence in Southeast Asia. Instead of permanent bases, the approach sought bilateral arrangements - like those with Singapore - for training, exercises, and interoperability to allow for uninterrupted forward deployment in the Asian region; their continued presence in the region assures faster response to developments in flash points in the eastern hemisphere.180
In line with the American approach, the 1998 VFA allows the rotational presence of U.S. military forces and their operations anywhere in the Philippines for a temporary but undefined length of time to train and inter-operate with the Philippine armed forces and to use their facilities. The Philippines retains jurisdiction over criminal cases, including capital offenses, involving U.S. troops.181
In Bayan v. Zamora,182 the Court held that although the agreement did not entail the permanent basing of a foreign military force, it required a treaty because Article XVIII, Section 25 of the Constitution covers not only the presence of bases but also the presence of "troops."183 As a treaty, the 1998 VFA required the concurrence of the Senate pursuant to Article VII, Section 21 of the Constitution.
The Court also held that the Philippines is bound to accept an official declaration by the U.S. to satisfy the requirement that the other contracting party must recognize the agreement as a treaty.184 It noted that the Vienna Convention on the Law of Treaties leaves each state free to choose its form of giving consent to a treaty.185
V.D. The EDCA
As heretofore outlined, the U.S. adopted the "Pivot to Asia" strategy beginning 2009 under the administration of President Barack Obama. In the article Explaining the US. Pivot to Asia. Kurt Campbell and Brian Andrews enumerated six key efforts under the U.S.'s "Pivot to Asia" policy, namely: alliances; improving relationships with emerging powers; economic statecraft; engaging with multi-lateral institutions; support for universal values; and increasing military presence.186
On military presence, the operative word is "presence": the forward deployment of U.S. military forces in Asia.187 The EDCA perfectly fits the American strategy as it allows the prepositioning of equipment and supplies in agreed locations to enhance the U.S.'s "development of a geographically dispersed, politically sustainable force posture in the region."188
The EDCA was signed on April 28, 2014, in Manila, by Philippine Defense Secretary Voltaire Gazmin, and U.S. Ambassador to the Philippines Philip Goldberg, in time for the official state visit by U.S. President Barack Obama. The 10-year accord is the second military agreement between the U.S. and the Philippines (the first being the 1998 VFA) since American troops withdrew from its Philippines naval base in 1992.
The agreement allows the U.S. to station troops and operations on Philippine territory without establishing a permanent base189 and with the stipulation that the U.S. is not allowed to store or position any nuclear weapons on Philippine territory.190
The EDCA was entered into for the following purposes:
1. This Agreement deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT, which states that "the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack," and within the context of the VFA. This includes:
(a) Supporting the Parties' shared goal of improving interoperability of the Parties' forces and for the Armed Forces of the Philippines ("AFP"), addressing short-term capabilities gaps; promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities; and
(b) Authorizing access to Agreed Location in the territory of the Philippines by United States forces on a rotational basis as mutually determined by the Parties.
2. In furtherance of the MDT, the Parties mutually agree that this Agreement provides the principal provisions and necessary authorizations with respect to Agreed Locations.
3. The Parties agree that the United States may undertake the following types of activities in the territory of the Philippines in relation to its access to and use of Agreed Locations: security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster relief activities; and such other activities as may be agreed upon by the Parties.191
To summarize, the EDCA has two main purposes:
First, it is intended as a framework for activities for defense cooperation in accordance with the 1951 MDT and the 1998 VFA.
Second, it grants to the U.S. military the right to use certain identified portions of the Philippine territory referred to in the EDCA as Agreed Locations. This right is fleshed out in the EDCA when the agreement identifies the privileges granted to the US. in bringing in troops and facilities, in constructing structures, and in conducting activities.192
The EDCA is effective for 10 years, unless both the U.S. and the Philippines formally agree to alter it.193 The U.S. is bound to hand over any and all facilities in the "Agreed Locations" to the Philippine government upon the termination of the Agreement.
In terms of contents, EDCA may be divided into two:
First, it reiterates the purposes of the 1951 MDT and the 1998 VFA in that it affinns the continued conduct of joint activities betweent the U.S. and the Philippines in pursuit of defense cooperation.
Second, it contains an entirely new agreement pertaining to Agreed Locations, the right of the U.S. military to stay in these areas and conduct activities which may not be imbued with mutuality of interests since they do not involve defense cooperation.
The latter provides suppmt for two interrelated arguments that I will forward in this Opinion. First the EDCA refers to the presence of foreign military bases, troops, and facilities in this jurisdiction. Second, the EDCA is not a mere implementation of, but goes beyond, the 1951 MDT and the 1998 VFA. It is an agreement that introduces new terms and obligations not found in the 1951 MDT and the 1998 VFA, and thus requires the concurrence of the Senate.
V.D(1) Does the EDCA involve the entry of military bases to the Philippines as envisioned under Article XVIII, Section 25?
V.D(1)(i) The Concept of a Foreign Military Base
A reading of the EDCA will reveal that it pertains to the presence in this country of a foreign military base or the moden1 equivalent of one. While Article XVIII Section 25 mentions no definition of what a foreign military base, troops, or facility is, these temis, at the time the 1987 Constitution was drafted, carried a special meaning. In fact, this meaning was the compelling force that convinced the framers to include Article XVIII, Section 25 in the 1987 Constitution.
More specifically, when the framers of the 1987 Constitution referred to foreign military bases, they had in mind the then existing 1947 MBA.194 This is apparent from the text of the provision itself which makes direct reference to the treaty, as well as from the exchanges of the framers of the 1987 Constitution prior to their vote on the proposed provision.195
In construing the meaning of statutes and of the Constitution, one aim is to discover the meaning that the framers attached to the particular word or phrase employed.196 The pertinent statute or provision of the Constitution must then be "construed as it was intended to be understood when it was passed."197
Thus, a proper interpretation of the meaning of foreign military bases must take into account how it was understood by the framers in accordance with how the 1947 MBA established U.S. military bases in the Philippines. It is in this technical and precise meaning that the term military base was used. It is this kind of military bases that Article XVIII, Section 25 intends to cover, subject to specific qualifications.
Hence, the concept of military bases as illustrated in the 1947 MBA should be taken into account in ascertaining whether the EDCA contemplates the establishment of foreign military bases. This reality renders a comparison of the 1947 MBA and the EDCA appropriate.
To clarify this position, it is not that the framers of the 1987 Constitution had in mind the specific existing foreign military bases under the 1947 MBA when they drafted Article XVIII Section 25. Such a position unjustifiably assumes that the framers lacked foresight and merely allowed themselves to be solely limited by the existing facts.
Rather, my position is that it is the concept of a foreign military base under the 1947 MBA, and not the specific military bases listed in its Annexes, that should be determinative of what the Constitution intends to cover. The foreign military base concept should necessarily be adjusted, too, to take into account the developments under the new U.S. "Pivot to Asia" strategy.
V.D(1)(ii) EDCA and the 1947 MBA Compared
A first material point to note is that the obligations under the EDCA are similar to the obligations found in the 1947 MBA. To support this view, I present below a side by side comparison of the relevant provisions of the EDCA and the 1947 MBA.
| EDCA |
1947 MBA |
|
Article III, Section 1
With the consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training, transit, support and related activities, refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and rnateriel; deploying forces and materiel and such other activities as the Parties may agree.
Article VI, Section 3
United States forces are authorized to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense, including undertaking appropriate measures to protect United States forces and United States contraclors. The United States should coordinate such, measures with appropriate authorities of the Philippines. |
Article III, par. 1
It is mutually agreed that the United States shall have the rights, power, and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate for their control. |
|
Article III, Section 4
The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake activities on, and make alterations and improvements to, Agreed Locations.xx x |
Article III, par. 2 (a) and (b)
x x x x
2. Such rights, power, and authority shall include, inter alia, the right, power and authority :
(a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases;
(b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;
x x x x |
|
Article VII, Section 1.
The Philippines hereby grants to United States forces and United States contractors the use of water, electricity, and other public utilities on terms and conditions, including rates of charges, no less favorable than those available to the AFP or the Government of the Philippines. x x x
Article VII, Section 2
The Parties recognize that it may be necessary for United States forces to use the radio spectrum. The Philippines authorizes the United States to operate its own telecommunications systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union "ITU"). This shall include the right to utilize such means and services required to ensure the full ability to operate telecommunications systems and the right to use all necessary radio spectrum allocated for this purpose. xxx |
Article III, par 2 (d)
x x x x
the right to acquire, as may be agreed between the two Governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including submarine and subterranean cables, pipe lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the two Governments to construct the necessary facilities;
x x x x |
|
Article IV, Section 1
The Philippines hereby authorizes United States forces, through bilateral mechanisms, such as the MDB and SEB, to preposition and store defense equipment, supplies and materiel ("prepositioned materiel"), including, but not limited to, humanitarian assistance and disaster relief equipment, supplies, and materiel, at Agreed Locations. United States forces x x x
Article IV, Section 3
The prepositioned materiel of the United States shall be for the exclusive use of United States forces, and full title to all such equipment, supplies, and materiel remains with the United States. United States forces shall have control over the access and disposition of such prepositioned materiel and shall have the unencumbered right to remove such prepositioned materiel at any time from the territory of the Philippines.
Article IV, Section 4
United States forces and United States contractors shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel. |
Article III, par (2) (e)
x x x x
to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, ·aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency. |
|
Article Ill, Section 2
When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, an airfield) including those owned or controlled by local governments, and to other land and facilities (including roads, ports and airfields). |
Article VII
It is mutually agreed that the United States may employ and use for United States military forces any and all public utilities, ·other services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers and streams in the Philippines under conditions no less favorable than those that may be applicable from time to time to the military forces of the Philippines. |
While the 1947 MBA grants broader powers to the U.S., due perhaps to the geopolitical context under which the agreement was forged (the 1947 MBA had an international, in contrast with EDCA's Asian, focus), the EDCA and the 1947 MBA essentially pursue the same purpose – the identification of portions of Philippine territory over which the U.S. is granted certain rights for its military activities.
These rights may be categorized into four:
(1) the right to construct structures and other facilities for the proper functioning of the bases;
(2) the right to perform activities for the defense or security of the bases or Agreed Locations;
(3) the right to preposition defense equipment, supplies and materiel; and,
(4) other related rights such as the use of public utilities and public services.
Only those who refuse to see cannot discern these undeniable parallelisms.
Further, even independently of the concept of military bases under the 1947 MBA, the provisions of the EDCA itself provide a compelling argument that it seeks to allow in this country what Article XVIII, Section 25 intends to regulate.
There exists no rigid definition of a military base. However, it is a term used in the field of military operations and thus has a generally accepted connotation. The U.S. Department of Defense (DoD) Dictionary of Military and Associated Terms defines a base as "an area or locality containing installations which provide logistic or other support"; home airfield; or home carrier.198
Under our laws, we find the definition of a military base in Presidential Decree No. 1227 which states that a military base is "any military, air, naval, coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines."199 A military base connotes the presence, in a relatively permanent degree, of troops and facilities in a particular area.200
In 2004, the U.S. DoD released Strengthening US. Global Defense Posture, a report to U.S. Congress about the renewed U.S. global position.201 The U.S. DoD redefined and reclassified their military bases in three categories:
Main Operating Base (MOB)
Main operating bases, with permanently stationed combat forces and robust infrastructure, will be characterized by command and control structures, family support facilities, and strengthened force protection measures. Examples include Ramstein Air Base (Germany), Kadena Air Base (Okinawa, Japan), and Camp Humphreys (Korea).
Forward Operating Site (FOS)
Forward operating site will be an expandable "warm facilities" maintained with a limited US. military support presence and possibly prepositioned equipment. FOSs will support rotational rather than permanently stationed forces and be a focus for bilateral and regional training. Examples include the Sembawang port facility in Singapore and Soto Cano Air Base in Honduras.
The following are the key characteristics of an FOS:
First, an FOS is an expandable/scalable facility. Andrew Krepinevich and Robert Work noted that an FOS can support both small and large forces, and can be readily expanded to serve as expeditionary or campaign bases should a crisis erupt nearby.202
Second, the facility is maintained or "kept warm" by limited U.S. military support personnel or U.S. military contractors. It hosts rotational rather than permanently stationed forces. An FOS may also house prepositioned equipment.
Finally, an FOS facility does not need to be owned by the U.S. (i.e., the Sembawang Port Facility and the Paya Lebar Airfield in Singapore). FOSs are generally bases that support forward-deployed rather than forward-based forces.203
The third classification of military bases is a Cooperative Security Location, described as follows:
Cooperative Security Location (CSL)
Cooperative security locations will be facilities with little or no permanent U.S. presence. Instead they will be maintained with periodic service, contractor, or host-nation support. CSLs will provide contingency access and be a focal point for security cooperation activities. A current example of a CSL is in Dakar, Senegal, where the U.S. Air Force has negotiated contingency landing, logistics, and fuel contracting arrangements, and which served as a staging area for the 2003 peace support operation in Liberia.204
The GDPR emphasized that the U.S. 's plan is to establish a network of FOSs and CSLs in Asia-Pacific to support the global war on terrorism and to provide multiple avenues of access for contingency operations. These facilities serve to expand training opportunities for the U.S. and the host-country. FOSs and CSLs allow U.S. forces to use these areas in times of crisis while avoiding the impression of establishing a permanent presence.205 Notably, these access agreements are less expensive to operate and maintain than MOBs.206 Moreover, FOSs and CSLs allow overseas military presence with a lighter footprint.207
To go back to the EDCA, it notably allows the U.S. to use the Agreed Locations for the following activities: "training, transit, support and related activities, refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel and such other activities as the Parties may agree."208
In order to carry out these activities, the EDCA allows U.S. military personnel to enter and remain in Philippine territory. It grants the U.S. the right to construct structures and assemblies.209 It also allows the U.S. to preposition defense equipment, supplies and materiel.210 The U.S. personnel may also use the Agreed Locations to refuel aircraft and bunker vessels.211
Stockpiling of military materiel in the Philippines is explicitly permitted under the following EDCA provisions:
1. Article III, par. 1: The activities allowed on the agreed locations include: (i) the prepositioning of equipment, supplies, and materiel; (ii) deploying forces and materiel; and (iii) such other activities as the Parties may agree.
2. Article IV, par. 1: U.S. forces are allowed to preposition and store defense equipment, supplies, material ("prepositioned materiel"), including, but not limited to, humanitarian assistance and disaster relief equipment, supplies, and materiel, at agreed locations.
3. Article IV, par. 3: The prepositioned materiel is for the exclusive use of U.S. forces and full title shall belong to the U.S.
4. Article IV, par. 4: The U.S. forces and U.S. contractors shall have unimpeded access to the agreed locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel.
Notably, neither the 1951 MDT nor the 1998 VFA authorized stockpiling. The 1951 MDT focused on developing the Philippines and the U.S.' s capacity to resist an armed attack while 1998 VFA focused on the entry and exit of US troops in the country. No provision in either treaty specifically allows stockpiling of military materiel.
In sum, the Agreed Locations mentioned in the EDCA are areas where the U.S. can perform military activities in structures built by its personnel. The extent of the U.S.' right to use of the Agreed Locations is broad enough to include even the stockpiling of weapons and the shelter and repair of vessels over which the U.S. personnel has exclusive control. Clearly, this is a military base as this term is ordinarily understood.
Further, as we held in Bayan Muna, Article XVIII, Section 25 refers to three different situations: the presence of foreign military bases, troops, or facilities.212 Even assuming that the EDCA is not a basing agreement, it nevertheless involves the deployment of troops and facilities in Philippine soil. As I have already stated, the EDCA allows U.S. forces to enter and remain in the Philippines. It defines U.S. forces to include U.S. military and civilian personnel and U.S. Armed Forces property, equipment, and materiel.213 The EDCA itself provides that the U.S. can deploy forces and materiel in the Agreed Locations.214
That the EDCA allows this arrangement for an initial period of 10 years, to continue automatically unless terminated,215 is further proof that it pertains to the presence in Philippine soil of foreign military bases, troops, and facilities on a more or less permanent basis.
Note, at this point, that the Senators, during the ratification of the 1998 VFA, observed that it only covers temporary visits of U.S. troops and personnel in the country. These Senators gave their consent to the 1998 VFA on the knowledge that the U.S. forces' stay in the country may last only up to three weeks to six months per batch.216
This temporary stay of U.S. forces in the Philippines under the 1998 VFA means that it does not cover, or approve of, a more permanent stay of US. forces and their equipment in the Philippines. Significantly, this is the key characteristic of the Agreed Locations in the EDCA. For, if the EDCA had not envisioned the stay of U.S. forces and equipment in the Agreed Locations in the Philippines for a period longer tlian envisioned in the 1998 VFA, it would not have added obligations regarding the storage of their equipment and materiel. The more permanent nature of the EDCA, in contrast to the 1998 VFA, indicates a change in the tenor of the agreement in the EDCA, one that does not merely implement the 1998 VFA.
V.D(2) Does the EDCA Merely Implement the 1951 MDT?
This question responds to the ponencia's argument that the EDCA can be embodied in an executive agreement because it merely provides implementing details for the 1951 MDT.217
V.D(2)(i) The Effects ofthe Expiration ofthe 1947 MBA and of the Adoption of the 1987 Constitution
The sequence of events relating to American bases, troops, and facilities in the Philippines that took place since Philippine independence, is critical in responding to the question in caption. It should be remembered that as a condition under the Tydings-McDuffie Act for the grant of Philippine independence, the Philippines was bound to negotiate with the U.S. for bases in the Philippines, resulting in the 1947 MBA.
This agreement contained the detailed terms relating to the existence and operation of American bases and the presence of American forces and facilities in the Philippines. As its title denotes, the 1951 MDT is the treaty providing for alliance and mutual defense against armed attack on either country; it only generally contained the defense and alliance relationship between the Philippines and the U.S.
In 1987, the Philippines adopted a new Constitution. This Charter directly looked forward to the expiration of the 1947 MBA and provided for the terms under which foreign military bases, troops, and facilities would thereafter be allowed into the Philippines. The 1947 MBA expired in 1991 and no replacement treaty took its place; thus, all the detailed arrangements provided under the 1947 MBA for the presence of U.S. bases, troops and facilities also ended, leaving only the 1951 MDT and its general terms in place.
Under this situation, the detailed arrangements that expired with the 1947 MBA were not carried over to the 1951 MDT as this treaty only generally provided for the defense and alliance relationship between the U.S. and the Philippines. Thus, there were no specific policies on military bases, troops, and facilities that could be implemented and operationalized by subsequent executive agreements on the basis of the MDT.
In particular, the terms of the 1947 MBA that had expired and had not been renewed cannot be deemed carried over to the 1951 MDT. If any such future agreements would be made after the effectivity of the 1987 Constitution, then such agreements would be governed by Article XVIII, Section 25 of the new Constitution.
Significantly, when the 1987 Constitution and its Article XVIII, Section 25 took effect, no absolute prohibition against the introduction of new U.S. bases, troops, and facilities was put in place. In fact the 1951 MDT then still existed as a general defense alliance of the Philippines and the U.S. against armed attack by third parties. But the introduction of military bases or their equivalent, of troops, and of military facilities into the Philippines can now only take place by way of a treaty concurred in by the Senate.
V.D(2)(ii) The 1951 MDT examined in light of the EDCA
That the EDCA is purely an implementation of the 1951 MDT and does not need to be in the form of a treaty, is not tenable for two reasons.
First, The EDCA grants rights and privileges to the U.S. that go well beyond what is contemplated in the 1951 MDT and the 1998 VFA.
Second, even the assumptions that the EDCA is indeed a mere implementation of both the earlier 1951 MDT and the 1998 VFA, this assumption by no means provides an argument in favor of treating the EDCA as an executive agreement. Notably, the 1998 VFA is also recognized as an implementation of the 1951 MDT yet the Government deemed it necessary to have it embodied in a separate treaty concurred in by the Senate.
On the first argument, an analysis of the 1951 MDT, the 1998 VFA, and the EDCA reveals that the EDCA is a stand-alone agreement.
The 1951 MDT is a treaty intended for the collective defense of its signatory countries (i.e., the U.S. and the Philippines) against external armed attack. This is apparent from its declaration of policies which states, among others, that the U.S. and the Philippines have agreed to the MDT in pursuit of their desire to –
x x x declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area.218
The rest of the text of the 1951 MDT consistently highlights this goal. Its Article II states that the parties shall "separately and jointly by self-help and mutual aid maintain and develop their individual and collective capacity to resist armed attack." Article III provides that the parties shall "consult together" regarding the implementation of the MDT whenever in their opinion the "territorial integrity, political independence or security of either of the parties is threatened by external armed attack in the Pacific." Article IV declares that an armed attack in the Pacific area on either of the parties would be dangerous to each other's peace and safety and thus they would act to meet the common danger. Article V then proceeds to define an armed attack as to include an armed attack on "the metropolitan territory of either parties or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels and aircrafts in the Pacific."
This Court has had occasion to explain the nature of the 1951 MDT. In Lim v. Executive Secretary,219 we said –
x x x The MDT has been described as the core of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts x x x. [Emphasis supplied]
Thus, the essence of the 1951 MDT is the conduct of joint activities by the U.S. and the Philippines m accordance with the dictates of collective defense against an attack in the Pacific. This is a focus that the EDCA lacks.
V.D(2)(iii) The 1951 MDT Compared with Other Defense Alliance Agreements
Our military obligations to the U.S. under the 1951 MDT are (1) to maintain and develop our military capacity to resist armed attack, and (2) to recognize that an armed attack against the U.S. in the Pacific is an attack on the Philippines and to meet the common danger in accordance with our constitutional process. The relevant provisions read:
Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
Article V. For purposes of ARTICLE IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
(Fortunately, the limits of the 1951 MDT have not been tested in actual operation since neither the Philippines nor the U.S. has as yet been the subject of an armed attack in the Pacific region.)
In relating the 1951 MDT to the EDCA, I glean from the ponencia the intent to seize the term "mutual aid" in developing the contracting parties' collective capacity to resist an armed attack, as basis for the US to establish a military base or a military facility or station military troops in the Philippines.220 This reading, however, would be a novel one in the context of American agreements with other Asian countries with their own alliance and MDTs with the U.S.
Note that Article II of the RP-U.S. 1951 MDT is similar to the following provisions in other MDTs:
(1) The 1953 US-South Korean MDT
Article II
The Parties will consult together whenever, in the opinion of either of them, the political independence or security of either of the Parties is threatened by external armed attack. Separately and jointly, by self-help and mutual aid, the Parties will maintain and develop appropriate means to deter armed attack and will take suitable measures in consultation and agreement to implement this Treaty and to further its purposes.221
(2) The 1954 US-Taiwan (Republic of China) MDT
Article II
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 and communist subversive activities directed from without against their territorial integrity and political stability.222
(3) the 1960 US-Japan Treaty of Mutual Co-operation and Security
Article III
The Parties, individually and in cooperation with each other, by means of continuous and effective self-help and mutual aid will maintain and develop, subject to their constitutional provisions, their capacities to resist armed attack.223
With little variance,224 these articles are essentially identical to Article II of the RP-U.S. 1951 MDT.
But notably, despite the existence of the above-mentioned provisions, all three treaties also saw the need to include a separate provision explicitly granting the U.S. the right to access and use of areas and facilities of the other contracting party. Thus:
Article IV
(US-Korea)
The Republic of Korea grants, and the United States of America accepts, the right to dispose United States land, air and sea forces in and about the territory of the Republic of Korea as determined by mutual agreement.225
Article VII
(US-Taiwan)
The Government of the Republic of China (Taiwan) grants, and the Government of the United States of America accepts, the right to dispose such United States land, air and sea forces in and about Taiwan and the Pescadores as may be required for their defense, as determined by mutual agreement.226
Article VI
(US-Japan)
For the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is granted the use by its land, air and naval forces of facilities and areas in Japan.
The use of these facilities and areas as well as the status of United States armed forces in Japan shall be governed by a separate agreement, replacing the Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America, signed at Tokyo on February 28, 1952, as amended, and by such other arrangements as may be agreed upon.227
These three articles do not have any counterpart in the RP-US 1951 MDT. Understandably perhaps, counterpart provisions are not in the 1951 MDT as our commitment to grant the U.S. use and access to areas and facilities in the Philippine territory was embodied in an earlier agreement, the 1947 MBA (which, however, expired, thus ending the use and access grants to the U.S. and its armed forces).
In my view, the implication of the above-quoted provisions in the US-South Korea, US-Taiwan, and US-Japan treaties (on "mutual aid") is clear: the obligation to provide mutual aid under Article II of the RP-US 1951 MDT (and its counterpart provisions) does not include the obligation to allow the entry and the stationing of U.S. troops or the establishment of military bases or facilities.
In light particularly of the constitutional developments in 1987, the 1951 MDT cannot be invoked as an umbrella agreement that would legally justify the grant to the U.S. of entry, access, and use of Philippine-owned areas or facilities without Senate concurrence. These activities, which the EDCA seeks to do allegedly pursuant to the 1951 MDT, do not fall within the purview of our commitments under the earlier treaty.
V.D(3) Does the EDCA Merelv Implement the 1998 VFA?
Is the EDCA merely an agreement implementing the 1998 VFA which already allows the limited entry of U.S. military troops and the construction of facilities?
The quick and short answer to the above question is - No, the EDCA does not implement the 1998 VFA as the EDCA in fact provides a wider arrangement than the 1998 VFA with respect to tfle entry of military bases, troops, and facilities into the Philippines. A naughty view is that the 1998 VFA should form part of the EDCA and not the other way around. Another reality, based on the treaty-executive agreement distinctions discussed above, is that the EDCA introduces new arrangements and obligations to those existing under the 1998 VFA; hence, the EDCA should be in the form of a treaty.
V.D(3)(i) The 1998 Visiting Forces Agreement
The Philippines' primary obligation under the 1998 VFA, is to facilitate the entry and departure of U.S. personnel in relation with "covered activities;"228 it merely defines the treatment of U.S. personnel visiting the Philippines; hence, its name.229 It is in fact a counterpart of the NATO-SOFA that the U.S. forged in Europe.
The Preamble of the VFA defines its objectives - to govern the terms of visits of "elements of the United States Armed Forces" to the Philippines, while the body of the agreement contains the agreed conditions. To quote from the relevant provisions of the 1998 VFA:
VISITING FORCES AGREEMENT
Preamble
The Government of the Republic of the Philippines and the Government of the United States of America,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;
Considering that cooperation between the Republic of the Philippines and the United States promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines;
Have agreed as follows:
Article I: Definitions
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. x x x
x x x x
Article III: Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this Agreement. x x x
As the ponencia correctly observed, the 1998 VFA itself does not specify what "activities" would allow the entry of U.S. troops into the Philippines. The parties left this open and recognized that the activities that shall require the entry of U.S. troops are subject to future agreements and the approval by the Philippine Government.
How this approval, however, will be secured is far from certain. What is certain is that beyond the restrictive "visits" that the 1998 VFA mentions, nothing else is said under the express terms of the Agreement.
Harking back to the 1947 MBA and its clear and certain terms, what comes out boldly is that the 1998 VFA is not an agreement that covers "activities" in the way that the 1947 MBA did; it is simply an agreement regulating the status of and the treatment to be accorded to U.S. armed forces personnel and their aircraft and vehicles while visiting the Philippines. The agreement itseJf does not authorize U.S. troops to permanently stay in the Philippines, nor authorize any activity related to the establishment and the operation of bases, as these activities had been defined under the 1947 MBA.
As discussed under the treaty-executive agreement distinctions above, if indeed the activities would be in line with the original intent of the 1998 VFA, then an executive agreement would suffice as an implementing agreement. On the other hand if the activity would be a modification of the 1998 VFA or would be beyond its tenns and would entail the establishment of a military base or facility or their equivalent, and the introduction of troops, then, a treaty duly concurred in by the Senate would be the appropriate medium of the U.S.-Philippines agreement.
This Court has had the opportunity to examine the 1998 VFA in Bayan Muna230 and described the agreement in this wise –
On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.
In Lim v. Executive Secretary,211 this Court further explained:
The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. [Emphasis supplied]
The 1998 VFA allows the entry of U.S. military personnel to Philippine territory and grants the U.S. specific rights; it is essentially an agreement governing the rules for the visit of "US armed forces in the Philippines from time to time"232 in pursuit of cooperation to promote "common security interests;" it is essentially a treaty governing the sojourn of US forces in this country for joint exercises.233
Significantly, the 1951 MDT and the 1998 VFA contain a similar feature - joint activities in pursuit of common security interests. The EDCA, on the other hand, goes beyond the terms of the 1951 MDT and the 1998 VFA.
As explained above, the EDCA has two purposes. First, it is an agreement for the conduct of joint activities in accordance with the 1951 MDT and the 1998 VFA. This, however, is not the centerpiece of the EDCA. Its centerpiece is the introduction of Agreed Locations which are portions of the Philippine territory whose use is granted to the U.S.234 The EDCA then proceeds to list the rights that the U.S. has over the Agreed Locations.235
A reading of the EDCA's provisions shows that the rights and privileges granted to the US. do not always carry a concomitant right on the part of the Philippines nor do they involve joint exercises. While the EDCA mentions that the Agreed Locations may be used for "security cooperation exercises"236 and "joint and combined training activities,"237 the provisions of the EDCA also provide for the conduct of other activities beyond the 1951 MDT and the 1998 VFA.
Within the Agreed Locations, the U.S. may conduct trainings for its troops, transit, support and related activities.238 The EDCA also allows the US. to use the Agreed Locations to refuel aircraft, bunker vessels, temporarily maintain vehicles, vessels and aircraft.239 Significantly, it does not provide for any qualification on the purpose for the entry of these vessels, vehicles, and aircraft into Philippine jurisdiction.
The EDCA also permits the temporary accommodation of personnel,240 again without any qualification as to the purpose of their visit. The U.S. forces may also engage in communications activities including the use of its own radio spectrum,241 similarly without any limitation as to the purpose by which such communications shall be carried out.
Further, within the Agreed Locations, the U.S. can also preposition defense equipment, supplies, and materiel over which the U.S. forces shall have exclusive use and control.242 Clearly, the right to deploy weapons can be undertaken even if it is not in the pursuit of joint activities for common security interests.
These rights, granted to the U.S. under the EDCA, do not contain an element of mutuality in the sense that mutuality is reflected in the 1951 MDT and the 1998 VFA. As these rights go beyond the earlier treaties and are, in fact, independent sources of rights and obligations between the U.S. and the Philippines, they cannot be mere details of implementation of both the 1951 MDT and the 1998 VFA.
And, as pointed out earlier, the Agreed Locations under the EDCA are akin to the military bases contemplated under the 1947 MBA. Thus, by its own terms, the EDCA is not only a military base agreement outside the provisions of the 1951 MDT and the 1998 VFA, but a piecemeal introduction of military bases in the Philippines.
Note that, at this point, there exists no agreement on the establishment of U.S. military bases in the Philippines; the EDCA re-introduces a modernized version of the fixed military base concept contemplated and operationalized under the 1947 MBA.
V.D(4) The 1951 MDT and 1998 VFA in conjunction with the EDCA
An additional dimension that the EDCA introduces - the treatment of U.S. forces and U.S. contractors -- reveals that it does not merely implement the 1951 MDT and the 1998 VFA, but adds to the obligations in these agreements.
To support its conclusion that the EDCA implements the provisions in the 1951 MDT and the 1998 VFA, the ponencia points out that the EDCA references 1951 MDT and the 1998 VFA in allowing the entry of U.S. personnel and U.S. forces in the Philippines, and that the entry of U.S. contractors (who had not been mentioned in the 1998 VFA) do not contradict the obligations found in the 1998 VFA.
The ponencia further notes that the U.S. contractors had been expressly excluded from the definition of U.S. personnel and U.S. forces, in line with their definitions in the 1998 VFA.243 They are not entitled to the same privileges that U.S. Personnel and U.S. forces enjoy under the 1998 VFA, but would have to comply with Philippine law to enter the Philippines.
The ponencia proceeds to argue that the lack of dissimilarities between the 1998 VFA and the EDCA point to the conclusion that the EDCA implements the 1998 VFA. By limiting the entry of persons under the EDCA to the categories under the 1998 VFA, the EDCA merely implements what had already been agreed upon under the 1998 VFA. The U.S. forces's authorization to perform activities under the EDCA does not change the nature of the EDCA as the 1998 VFA's implementing agreement, as the term "joint exercises" under the 1998 VFA denotes a wide range of activities that include the additional activities under the EDCA.
That the 1998 VFA and the EDCA are not dissimilar in terms of their treatment of U.S. forces and U.S. personnel, does not automatically mean that the EDCA simply implements the 1998 VFA, given the additional obligations that the EDCA introduces for the Philippine government.
As earlier discussed, the EDCA introduces military bases in the Philippines within the concept of the 1987 Constitution, and it is in light of these additional obligations that the EDCA 's affirmation of the 1998 VFA should be viewed: the EDCA adds new dimensions to the treatment of U.S. Personnel and U.S. forces provided in the 1998 VFA, and these dimensions cannot be ignored in determining whether the EDCA merely implements the 1998 VFA.
Thus, while the EDCA affirms the treatment of U.S. personnel and U.S. forces in the Philippines, it at the same time introduces the Philippines' obligation to recognize the authority of U.S. Forces in the "Agreed Locations." Under the EDCA, U.S. forces can now preposition and store defense equipment, supplies, and materiel at Agreed Locations. They shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel. Lastly, the EDCA authorizes the U.S. forces to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense. In contrast, the 1998 VFA only refers to the tax and duty-free entry of U.S. Government equipment in connection with the activities during their visit.
In the same manner, and despite being in a different class as U.S. personnel and U.S. forces, U.S. contractors are also allowed "unimpeded access" to the Agreed Locations when it comes to all matters relating to the prepositioning and storage of defense equipment, supplies and materiel.
Thus, these groups of people (U.S. personnel, U.S. forces and U.S. contractors) have been referred to in the EDCA not merely to implement the 1998 VFA, but to further their roles in the Agreed Locations that the EDCA authorizes.
From these perspectives, the EDCA cannot be considered to be a simple implementation of the 1998 VFA. Rather, it is a continuation of the 1998 VFA under new dimensions. These dimensions should not and cannot be hidden behind reaffirmations of existing 1998 VFA obligations. These added dimensions reinforce the idea of military bases, as it allows them access to the Agreed Locations that, as I had earlier mentioned, is the cornerstone of the EDCA. From the legal end, the obligations under the EDCA, not its policy declarations and characterization, should be decisive in determining whether Section 25, Article XVIII applies.
Lastly, even assuming that the EDCA is an implementation of the 1951 MDT and the 1998 VFA, the practice of the Government reveals that even when an agreement is considered as an implementation of a prior treaty, the concurrence of the Senate must still be sought.
Early in the Senate deliberations on the 1998 VFA, the senator-sponsors characterized it merely as a subsidiary or implementing agreement to the 1951 MDT.244 Nevertheless, Senator Tatad, one of the 1998 VFA's co-sponsors, recognized that Article XVIII, Section 25 of the Constitution prohibits the 1998 VFA from being executed as a mere executive agreement,245 for which reason it was sent to the Senate for concurrence.
The senators agreed during the deliberations that an agreement implementing the 1951 MDT requires Senate concurrence.246 This is because the agreement, despite implementing or affirming the 1951 MDT, allows the entry of U.S. troops in the Philippines, a matter covered by Article XVIII, Section 25 of the Constitution.
Indeed, the 1998 VFA has been consistently treated as an implementation of the 1951 MDT. Nevertheless, the Government correctly chose to enter into the international agreement in the form of a treaty duly concurred in by the Senate, because it involves the entry of foreign military troops independent of and in addition to, the general agreements in the 1951 MDT.
In the same manner, the EDCA, which purportedly implements and complements both the 1951 MDT and the 1998 VFA, should have likewise been submitted to the Senate for its concurrence because of the new obligations it introduces.
To reiterate, the EDCA allows for a more permanent presence of U.S. troops and military equipment in the Philippines (akin to establishing a base), which was not contemplated under the 1998 VFA. Thus, despite having been treated as an implementation of the 1951 MDT and the 1998 VFA, the new obligations under the EDCA calls for the application of Article XVIII, Section 25 of the Constitution and its submission to the Senate for concurrence.
V.E. The EDCA: the Actual and Operational View
As my last point, let me just say that the ponencia can engage in a lot of rationalizations and technical distinctions on why the EDCA provisions do not amount to or equate with the operation of military bases and the introduction of troops and facilities into the Philippines. The ponencia cannot escape the conclusion that translated to actual operational reality:
1. The activities described in the EDCA are no different from the operation of a military base in the 1947 sense, except that under the current U.S. strategy, a fixed base in the 1947 sense is hardly ever established because the expenses and administrative problems accompanying a fixed base can now be avoided. A military "facility" can very well serve the same purposes as a fixed military base under current technological advances in weaponry, transportation, and communications.247 The U.S. can achieve the same results at less expense and with lesser problems if it would have guaranteed access to and control of specified areas such as the Agreed Locations that the EDCA conveniently provides.
FOSs or CSLs, as defined above, are expandable "warm facilities" maintained with limited US. military support presence and possibly prepositioned equipment.248 FOSs will support rotational rather than permanently stationed forces, and will be a focus for bilateral and regional training and for the deployment of troops and stored and prepositioned equipment, supplies, and materiel.249
As has already been mentioned, examples include the Sembawang port facility in Singapore and Soto Cano Air Base in Honduras. The Philippines will soon follow without the consent of the Filipino people and against the constitutional standards they set, if EDCA would be enforced without the benefit of Senate concurrence.
2. Under the "pivot to Asia strategy," the operative word is "presence" which means ready access to equipment, supplies, and materiel by troops who can be ferried from safer locations and immediately be brought to the scene of action from the Agreed Locations. The EDCA provides such presence through the Agreed Locations; the access to these secured locations; the prepositioning and storage of defense (read as "military") equipment, supplies, and materiel; and the forward jump-off point for the deployment of troops to whatever scene of action there may be that Philippine locations may serve best.
3. From the point of view of "troops" that Article XVIII, Section 25 likewise regulates through Senate concurrence, note that in the EDCA, contractual employees are mentioned together or side-by-side with the military. This is a relatively recent development where contractual employees are used to provide the same services and serve hand in hand or as replacement or to augment regular military forces. The U.S. has put these contractual employees to good use in various local theaters of conflict, notably in Iraq, Afghanistan and Syria.250 The U.S. has reportedly resorted to the use, not only of regular military forces, but of contractual employees who may provide the same services as military forces and who can increase their numbers without alerting the U.S. public to the actual number of troops maintained.
VI. CONCLUSION AND THE QUESTION OF REMEDY
Based on all the above considerations, I conclude that the EDCA, instead of being in implementation of the 1951 MDT and the 1998 VFA, is significantly broader in scope than these two treaties, and effectively added to what the 1951 MDT and the 1998 VFA provide.
The EDCA is thus a new agreement that touches on military bases, troops, and facilities beyond the scope of the 1951 MDT and the 1998 VFA, and should be covered by a treaty pursuant to Article XVIII, Section 25 and Article VII, Section 21, both of the 1987 Constitution. Without the referral and concurrence by the Senate, the EDCA is constitutionally deficient and, hence, cannot be enforced in our country.
To remedy the deficiency, the best recourse RECOMMENDED TO THE COURT under the circumstances is for the Court to suspend the operations of its rules on the finality of its rulings and for the Court to give the President ninety (90) days from the service of its Decision, whether or not a motion for reconsideration is filed, the OPTION to refer the EDCA to the Senate for its consideration and concurrence.
The referral to the Senate shall serve as a main or supplemental motion for reconsideration· that addresses the deficiency, rendering the effects of the Court's Decision moot and academic. Otherwise, the conclusion that the President committed grave abuse of discretion by entering into an executive agreement instead of a treaty, and by certifying to the completeness of Philippine internal process, shall be fully effective.
As my last point, we must not forget that the disputed executive agreement that the President entered into is with the Americans from whom we trace the roots of our present Constitution. The Americans are a people who place the highest value in their respect for their Constitution. This should be no less than the spirit that should move us in adhering to our own Constitution. To accord a lesser respect for our own Constitution is to invite America's disrespect for the Philippines as a co-equal sovereign and independent nation.
ARTURO D. BRION
Associate Justice
Footnotes
1 Instrument of Ratification, Annex A of the Memorandum of OSG, rollo, p. 476. [per p. 14 of ponencia, to verify from rollo]
2 Constitution, Article VII, Section 21; Article XVIII, Section 25.
3 Derived from the Supreme Court's powers under Article VIII, Section 5(2)(a) of the Constitution.
4 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 46-47, 79-81.
5 Id. at 52-57; Saguisag, et al. Petition (G.R. No. 212444), pp. 32-34.
6 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 84-87.
7 Id at 40-43; Saguisag, et al. Petition (G.R. No. 212444), pp. 34-36.
8 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 82-84.
9 Id. at 23-27; Saguisag, et al. Petition (G.R. No. 212444), pp. 36-38.
10 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 87-89.
11 Id. at 90-91.
12 Id at 44-45, 58-59; Saguisag, et al. Petition (G.R. No. 212426), pp. 39-49.
13 OSG Consolidated Comment, pp. 3-8.
14 Id at 10-13.
15 Id at 13-14.
16 Id. at 14-21.
17 Ponencia, pp. 3-7, 25-27.
18 Id. at 29-43.
19 Id at 31.
20 Id at 48-52.
21 Id. at 34-43.
22 Id at 43-46.
23 Id at 48-72.
24 Id. at 46.
25 Id
26 Id at 46-48.
27 Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22; Bayan Muna, et al. Petition (G.R. No. 212444), p. 6.
28 Senate Resolution No. 105 dated November 10, 2015.
29 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 9-10.
30 Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22.
31 Id. at 19.
32 OSG Consolidated Comment, pp. 3-5.
33 Id.at5-7.
34 Id. at 7-8.
35 Ponencia, pp. 19-25.
36 Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014, 721 SCRA 146, 278-279.
37 Id. at 279-280.
38 See Separate Opinion of J. Brion in Imbong v. Ochoa, Jr., supra note 36, at 489-491.
39 Galicto v. Aquino, 683 Phil. 141, 170 (2012).
40 Ibid.
41 See David v. Macapagal Arroyo, 552 Phil. 705 (2006), where the Court held that in private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiff's standing is based on his own right to the relief sought.
42 De Castro v. Judicial and Bar Council, 629 Phil. 629, 680 (2010).
43 See Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 634 (2000), citing Tatad v. Secretary of the Department of Energy, G.R. No. 124360, December3, 1997, 281SCRA330, 349, citing Garcia v. Executive Secretary, G.R. No. 101273, July 3, 1992, 211 SCRA 219; Osmena v. COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750; Basco v. Pagcor, G.R. No. 91649, May 14, 1991, 197 SCRA 52; and Araneta v. Dinglasan, 84 Phil. 368 (1949).
44 Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC) v. Power Sector Assets and Liabilities Management Corporation (PSALM), G.R. No. 192088, Octobec 9, 2012, 682 SCRA 602, 633-634.
45 See Separate Opinion of J Brion in Cawad v. Abad, G.R. No. 207145, July 28, 2015, citing Quinto v. COMELEC, G.R. No. 189698, December 1, 2009, 606 SCRA 258, 276 and GMA Network v. COMELEC, G.R. No. 205357, September 2, 2014, 734 SCRA 88, 125-126.
46 See CREBA v. ERC, 638 Phil. 542, 556-557 (2010), where the Court provided "instructive guides" as determinants in determining whether a matter is of transcendental importance, namely: (I) 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 with a more direct and specific interest in the questions being raised.
47 Imbong v. Ochoa, Jr., supra note 36, at 280.
48 Id.
49 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, 589 Phil. 387, 481 (2008).
50 Bondoc v. Pineda, 278 Phil. 784 (1991 ).
51 Javellana v. Executive Secretary, 151-A Phil. 36, 131 (1973), citing In Re McConaughy, 119 N.W. 408, 417.
52 See Garcia v. Executive Secretary, 602 Phil. 64, 73-77 (2009).
53 Ibid.
54 369U.S.186(1962).
55 ld. at 217.
56 Dueas v. House of Representatives Electoral Tribunal, 610 Phil. 730, 742 (2009); Lambino v. Commission on Elections, 536 Phil. 1, 111 (2006).
57 See Constitution, Article VII, Section 21.
58 Bondoc v. Pineda, supra note 50, at 784.
59 On order of then U.S. Secretary of the Navy, Theodore Roosevelt, Commodore Dewey attacked the Spanish fleet in the Philippines. At noon of May I, 1898, Commodore Dewey's ships had destroyed the Spanish fleet at the Battle of Manila Bay. See Bayan Muna, et al. Petition (G.R. No. 212444), pp. 11, citing http://www.history.com/this-day-in-history/battle-of-manila-bay.
See Zbigniew Brzesinski, The Grand Chessboard - American Primacy and its Geostrategic Imperatives (1997).
See also Fraser Weir. A Centennial History of Philippine Independence, 1898-1998: Spanish-American War - War of Philippine Independence 1898-1901. University of Alberta, available at https://www.ualberta.ca/~vmitchel/fw4.html; The Spanish-American War, 1898. United States Department of State, available at https://historv.state.gov/milestones/ 1866-1898/spanish-american-war; and, The Spanish-American War in the Philippines (1989). American Experience, available at http://www.pbs.org/wgbh/amex/macarthur/peoplcevents/pandeAMEX87.html.
60 In the early part of 1898, the relations between the U.S. and Spain deteriorated. As the war became imminent, Commodore George Dewey, the commander of the U.S. Asiatic Squadron, had discussion with Emilio Aguinaldo's government in exile in Singapore and Hong Kong. See Weir, supra note 59.
61 In the early part of 1898, the relations between the U.S. and Spain deteriorated. As the war became imminent, Commodore George Dewey, the commander of the U.S. Asiatic Squadron, had discussion with Emilio Aguinaldo's government in exile in Singapore and Hong Kong. See Weir, supra note 59.
62 Treaty of Peace Between the United States and Spain (December 10, 1898), Article III:
"Spain cedes to the United States the archipelago known as the Philippine Islands x x x"
See Yale Law School. The Avalon Project. Treaty of Peace between the United States and Spain. Available at http://avalon.law.yale.edu/ 19th century/sp 1898.asp.
63 Renato Constantino. The Philippines: A Past Revisited (1975), pp. 228-229.
64 See Brzesinski, supra note 59, at 3-29.
According to Brzesinski, America stands supreme in the four decisive domains of global power: (1) militarily, it has an unmatched global reach; (2) economically, it remains the main locomotive of global growth; (3) technologically, it retains the overall lead in the cutting-edge areas of innovation; and (4) culturally, despite some crassness, it enjoys an appeal that is unrivaled. The combination of all four makes America the only comprehensive superpower.
Brzesinski traced the trajectory of the US's rise to global supremacy beginning from World War I (WWI) to the end of the Cold War, noting that the U.S. 's participation in WWI introduced it as a new major player in the international arena. While WWI was predominantly a European war, not a global one, its self-destructive power marked the beginning of the end of Europe's political, economic and cultural preponderance over the rest of the world. The European era in world politics ended in the course of World War II (WWII), the first truly global war. Since the European (i.e., Germany) and the Asian (i.e., Japan) were defeated, the US and the Soviet Union, two extra-European victors, became the successors to Europe's unfulfilled quest for global supremacy.
The contest between the Soviet Union and the US for global supremacy dominated the next fifty years following WWII. The outcome of this contest, the author believes, was eventually decided by non-military means: political vitality, ideological flexibility, economic dynamism, and cultural appeal. The protracted competition, in the end, eventually tip the scales in America's favor simply because it was much richer, technologically much more advanced, militarily more resilient and innovative, socially more creative and appealing.
65 See Bayan Muna, et al. Petition, GR No. 212444, pp. 13-14; and Kilusang Mayo Uno, et al. petition-in-intervention, p. 7.
See also Stephen Shalom. Securing the U.S.-Philippine Military Bases Agreement of 1947, William Paterson University, available at http://www.wpuni.edu/dotAsset/209673.pdf; Robert Paterno. American Military Bases in the Philippines: The Brownell Opinion, available at http://philippinestudies.net/ojs/index.php/ps/article/viewFile/2602/5224; James Gregor. The Key Role of U.S. Bases in the Philippines. The Heritage Foundation, available at http://www.heritage.org/research/repo1ts/ 1984/0 l/the-key-role-of-us-bases-in-the-philippines; Maria Teresa Lim. "Removal Provisions of the Philippine-United States Military Bases Agreement: Can the United States Take it All" 20 Loyola of Los Angeles Law Review 421, 421-422. See Fred Greene. The Philippine Bases: Negotiating For the Future (1988), p. 4.
The 1947 Military Bases Agreement was signed by the Philippines and the U.S. on March 14, 1947; it entered into force on March 26, 1947 and was ratified by the Philippine President on January 21, 1948. See Charles Bevans. Treaties and Other International Agreements of the United States of America (1776-1949), Available at United States Department of State, https://books.google.com.ph/books?id=MUU6AQAA1AAJ&pg=PA55&lpg=PA55&dq=17+UST+1212:+
TIAS+6084&source=bl&ots=VBtlV34ntR&sig=X2yYCbWVfJqF_o69-CcyiP88zw0&hl=en&sa=X&ved=
0ahUKEwiKg-jXq8LJAhXRBY4KHSicDeAO6AEIGzAA#v=onepage&q=17%20UST%201212%3B%20
TIAS%206084&f=false.
The Philippine government also agreed to enter-into negotiations with the U.S., on the latter's request, to: expand or reduce such bases, exchange those bases for others, or acquire additional base areas. The agreement allowed the U.S. full discretionary use of the bases' facilities; gave criminal jurisdiction over U.S. base personnel and their dependents to the U.S. authorities irrespective of whether the alleged offenses were committed on or off the base areas. See Gregor, supra.
66 The Philippines and the U.S. signed the MDT on August 30, 1951. It came into force on August 27, 1952 by the exchange of instruments of ratification between the parties. See Mutual Defense Treaty, U.S.-Philippines, August 30, 1951, 177 U.N.T.S. 134. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20177 /volume-177-1-2315-English.pdt; See also Bayan v. Gazmin petition, GR No. 212444, at 14; Saguisag v. Executive Secretary Ochoa petition, GR No. 212426, p. 8; and Kilusang Mayo Uno, et. al. petition-in-intervention, p. 7.
It was concurred in by the Philippine Senate on May 12, 1952; and was advised and consented to by the U.S. Senate on March 20, 1952, as reflected in the U.S. Congressional Record, 82"d Congress, Second Session, Vol. 98 - Part 2, pp. 2594-2595. See Nicolas v. Romulo, 598 Phil. 262 (2009).
67 1956: The Garcia-Bendetsen conference resolved the issue of jurisdiction in the American bases. The US began to recognize sovereignty of the Philippine government over the base lands. See Exchange of Notes, U.S.-Philippines, December 6, 1956, available at http://elibrary.judiciary.gov.ph/thebookshelf/docmonth/Dec/1956/35.
1959: Olongapo, which was then an American territory, was officially turned over by the US to the Philippines. Over the years, 17 of the 23 military installations were also turned over to the Philippines. See Memorandum of Agreement, U.S.-Philippines, October 12, 1959, available at http://elibrarv.judiciaiygov.ph/thebookshelf/showdocs/35/11192.
1965: An agreement was signed revising Article XIII of the treaty wherein the US will renounce exclusive jurisdiction over the on-base offenses and the creation of a joint criminal jurisdiction committee. See Exchange of Notes, U.S.-Philippines, August 10, 1965, available at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/35/10934.
1966: The Ramos-Rusk Agreement reduced the term of the MBA to 25 years starting from that year. See Exchange of Notes, U .S.-Philippines, September 16, 1966, available at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/35/10859.
1979: The US reaffirmed Philippine sovereignty over the. basis and placed each base under command of a Philippine base commander. See Office of the President of the Philippines. (1979). Official Week in Review. Official Cia:::ette c!(the Republic elf' the Philippines. 75(1). iii-iv, available at http://www.gov.ph/1979/08/official-week-in-review-january-1-january-7-1979/.
68 Constitution, Article XVIII, Section 25.
69 On September 16, 1991, the Philippine Senate voted to reject a new treaty that would have extended the presence of U.S. military bases in the Philippines. See Bayan v. Zamora, 396 Phil. 623, 632 (2002), citing the Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and Security on the Visiting Forces Agreement.
70 United States Department of Defense. Sustaining U.S. Global Leadership: Priorities for 21st Century Defense (January 2012), p. 2, available at http://archive.clefense.gov/ne>vs/Defense Strategic Guidance.pdf:
71 John Hemmings. Understanding the U.S. Pivot: Past, Present, and Future. 34(6) Royal United Services Institute Newsbrief (November 26, 2014), available at https://hemmingsjohn.wordpress.com/2014/11/27/understanding-the-us-pivot-past-present-and-future/.
72 Ibid.
73 Richard Bush, No rebalance necessary: The essential continuity of U.S. policy in the Asia-Pacific. Brookings Institution (March 18, 2015), available at http://www.brookings.edu/blogs/order-from-chaos/ posts/2015/03/18-value-of-continuity-us-policy-in-asia-pacific.
74 US Congressional Research Service, Pivot to the Pacific? The Obama Administration's "Rebalancing" Toward Asia, March 28, 2012, p. 2. Available at http://www.fas.org/sgp/crs/natsec/R42448.pdf
75 United States Department of Defense. The Asia-Pacijic Maritime Security Strategy: Achieving U.S. National Security Objectives in a Changing Environment, (2015), p. 23. Available at http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-P_Maritime_SecuritY_Strategy-08l420l5-1300-FINALFORMAT.PDF.
76 EDCA, Article III.
77 David Vine, Base Nation: How U.S. Military Bases Abroad Harm America and the World (2015), pp. 300-301.
78 Brzesinski, supra note 59, at 151-193.
79 The arbitration case was filed before the Permanent Court of Arbitration on January 22, 2013. See Republic of the Philippines v. the People's Republic of China, Permanent Court of Arbitration, available at http://www.pca-cpa.org/showpage65f2.html?pag_id= 1529.
80 Ponencia, pp. 25-28.
81 Id at 27.
82 Id. at 28.
83 Id. at 28-46.
84 Id. at 28-34, 46-95.
85 Constitution, Article VII, Section 5.
86 Although the ponencia recognized constitutional provisions that restrict or limit the President's prerogative in concluding international agreements (see ponencia, pp. 34-43), it contradictorily asserts that "[n]o court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement, unless the case falls squarely within Article VIII, Sec. 25" and that "[t]he President had the choice to enter into the EDCA by way of an executive agreement or a treaty." See ponencia, p. 43.
87 Constitution, Article VII, Section 18.
88 The Constitution vests legislative power upon the Congress of the Philippines. Thus, the Congress has the power to determine the subject matters it can legislate upon. See Constitution, Article VI, Section 1.
89 Constitution, Article VI, Section 25.
90 Pimentel v. Executive Secretary, 501 Phil. 303, 317-318 (2005).
91 Ibid.
92 Ibid.
93 Angara v. Electoral Commission, 63 Phil 139 (1936).
94 Constitution, Article VI, Section 27(2).
95 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333, 338-340 (1961).
96 Constitution, Article VII, Sections 5 and 17.
97 Angara v. Electoral Commission, supra note 93, at 157-159.
98 343 U.s. 579 (1952).
99 Id. at 635.
100 Id. at 637.
101 Ibid.
102 Ibid
103 Youngstown Sheet v. Sawyer, supra note 98, at 637-638.
104 552 U.S. 491 (2008).
105 Id., supra note 98, at 637.
106 Ibid.
107 Senate Resolution No. 1414 was entitled as the "Resolution expressing the strong sense of the Senate that any treaty ratified by the President of the Philippines should be concurred in by the Senate, otherwise the treaty becomes invalid and ineffective." It was signed by thirteen Senators: Senators Defensor-Santiago, Angara, Cayetano, P., Ejercito, Estrada, Guingonl! III, Lapid, Marcos, Jr., Osmeña III, Pimentel III, Recto, Revilla, Jr.. and Villar. Available at https://www.senate.gov.ph/lisdata/2175018478!.pdf.
108 Ponencia, pp. 45-46.
109 See Land Bank of the Philippin(:'s v. 11t/anta Industries, Inc., G.R. No. 193796, July 2, 2014, 729 SCRA 12, 30-3 I, citing Bayan Muna v. Romulo, 656 Phil. 246, 269-274 (2011 ); Neri v. Senate Committee on Accountability of Public Officers and !nvcsfi[.'.ations, 586 PhiL 135, 168 (2008), citing Usaffe Veterans Association, Inc. v. Treasurer of the Philippines. l 05 Phil. l 030, I 038 (1959); Commissioner qf Customs v. Eastern Sea Trading, supra note 95.
110 Ibid.
111 Constitution, Article VII, Sections 5 and 17.
112 Commissioner of Customs v. Eas1an Sea Trading, supra note 95.
113 Constitution, Article VII, Sectilw 21. See als0 Bayan Muna v. Romulo, supra note I 09, at 269-270.
114 Ibid.
115 Supra note 109.
116 Id. at 269.
117 Ibid.
118 Bayan Muna v. Romulo, supra note 109, at 270, citing Hellkin, Foreign Affairs and the United States Constitution 224 (2nd ed., 1996), and Edwin Borchard, Treaties and Executive Agreements - Reply, Yale Law Journal, June 1945.
119 Ibid.
120 Gonzales v. Hechanova, 118 Phil. I 065, I 079 (1963).
121 Adolfo v. CFI of Zambales, 145 Phil. 264, 266-268 (1970).
122 Bayan Muna v. Rvmulo, supra note 109. at 1079- 1080.
123 Ibid.
124 Ibid.
125 Supra note 69.
126 Id. at 653.
127 Ponencia, p, 29.
128 Id at 33,
129 Bolos v, Bolos, G,R. No. 186400, 20 October 2010, 634 SCRA 429, 437.
130 Ponencia, p. 32.
131 Id at 33.
132 Ibid.
133 IV Record, Constitutional Commission 84, 659 and 66 I (September 16, I 986), which reads:
MR. AZCUNA: After the agreement expires in 1991, the question, therefore, is: Should we extend a new treaty for these bases to stay put in 1991 in our territory? The position of the committee is that it should not, because the presence of such bases is a derogation of Philippine sovereignty.
lt is said that we should leave the~e matters to be decided by the executive, since the President conducts foreign relations and this i:;, a question of foreign policy. I disagree, Madam President. This is not simply a question of foreign policy; this is a question of national sovereignty.xx x
FR. BERNAS: My question is: h it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?
MR. AZCUNA: It is difficult to imagine a situation based on existing facts where it would not. x x x
134 IV Record, Constitutional Commission 84, 659 and 661 (September 16, 1986), which reads:
MR. AZCUNA: After the agreement expires in 199 I, the question, therefore, is: Should we extend a new treaty for these bases to stay put in J 991 in our territory? The position of the committee is that it should not, because the presence of such bases is a derogation of Philippine sovereignty.
lt is said that we should leave these matters to be decided by the executive, since the President conducts foreign relations and this is a question of foreign policy. I disagree, Madam President. This is not simply a question of foreign policy; this is a question of national sovereignty.xx x
FR. BERNAS: My question is: h it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?
MR. AZCUNA: lt is difficult to imagine a situation based on existing facts where it would not.xxx
135 See Tañada v. Angara, 338 Phil. 546, 593 (1997), citing Reagan v. Commission on Internal Revenue, 141 Phil. 62 I, 625 (1969), wfo.r,; rbe Cuurt l:iscussed the concept of auto-limitation, viz.: "It is to be admitted that any State may by its consent, express or implied, submit to a restriction of its sovereignty rights. That is the concept of sovereignty a. auto-·limitation which, in the succinct language of Jellinek, 'is the property of a state-force due to which it has the exclusive capacity of legal-self determination and self-restriction.' A State then, if it chooses to. may refrain from the exercise of what otherwise is illimitable competence."
136 Ibid.
137 Ponencia, p. 32.
138 III Record, Constitutional Commission 86 (16 September 1986), p. 659.
139 IV Record, Constitutional Commission 82 (11September1986), pp. 617-618.
140 IV Record, Constitutional Commission 84 (16 September 1986), pp. 661-662, which reads:
FR. BERNAS. My question is: ls il the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?
MR. AZCUNA: It is difficult to imagine a situation based on existing facts where it would not. However, in the abstract, it is possible that it would not be that much of a derogation. I have in mind, Madam President, the argument that has been presented. Is that the reason why there are US. bases in England, in Spain and in Turkey? And it is not being claimed that their sovereignty is being derogated. Our situation is different from theirs because we did not lease or rent these bases to the U.S. The US. retained them from us as a colonial power.
x x x x
FR. BERNAS: Does the first sentence tolerate a situation radically different from what obtains now? In other words, if we undt.,rstand sovereignty as autolimitation, as a people's power to give up certain goods in order to ob1.iin s0mething which may be more valuable, would it be possible under this first sentence for the nation to negotiate some kind of a treaty agreement that would not derogate against sovereignty?
MR. AZCUNA: Yes. For exampk, Madam President, if it is negotiated on a basis of true sovereign equality, such as a m11tual ASEAN defense agreement wherein an ASEAN force is created and this ASEAN force i.; a foreign military force and may have a basis in the member ASEAN countries, this kind of a situation, l think. would not derogate from sovereignty.
141 IV Record, Constitutional Commission 86 (18 September 1986), p. 787, which reads:
MR. ROMULO: Madam President, may I propose my amendment to the Bernas amendment: "AFTER THE EXPIRATlON OF THE RP--US AGREEMENT IN 1991, FOREIGN MILITARY BASES, TROOPS OR FACILITIES SHALL NOT BE ALLOWED IN THE PHILIPPINE TERRITORY EXCEPT UNDER THE TERMS OF A TREATY DULY CONCURRED IN BY THE SENATE, AND WHEN CONGRESS SO REQUIRES RATIFIED BY A MAJORITY OF THE VUTES CAST BY THE PEOPLE IN A REFERENDUM HELD FOR THAT PURPOSE AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."
142 IV Record, Constitutional Commission 86 (18 September 1986), p. 780; which reads:
FR. BERNAS: On the other hand, Madam President, if we place it in the Transitory Provisions and mention only the American State, the conclusion might be drawn that this applies only to foreign military bases of the United States. The conclusion might be drawn that the principle does not apply to other states.
MR. ROMULO: That is certainly not our meaning. We do not wish any other foreign military base here and I think the phrase which says: "NO FOREIGN MILITARY BASES, TROOPS OR FACILITIES ... " makes that very clear even if it is in the Transitory Provisions.
143 Bayan v. Zamora, supra note 69, at 652, stating that:
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.
x x x x
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIll means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty, the VFA in the instant case.
144 Constitution, Article VII, Section 21. See also Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), pp. 487-488.
145 Constitution, Article XVIII, Section 25.
146 Supra note 69.
147 Id. at 659.
148 Id. al 656-659.
149 The Tydings-McDuffie Act, also known as the Philippine Independence Act, was entitled "An Act to Provide for the Complete Independence of the Philippine Islands, to provide for the Adoption of a Constitution and a Form of Government for the Philippine Islands, and for other purposes." It was signed into law by President Franklin D. Roosevelt on March 24, 1934 and was approved by the Philippine Senate on May 1, 1934. See Encyclopedia Britannica, Tydings-McDuffie Act, available at http://www.britannica.com/topic/Tydings-McDuffie-Act and http://www.philippine-history.org/tydings-mcduffie-law.htm.
150 Tydings-McDuffie Act, Section 3.
151 Id., Section 10.
152 Id., Section 2(12). See also Ordinance appended to 1935 Constitution, Section 1 (12).
153 Id., Section 10(b).
154 The 1947 MBA Whereas Clause, par. 7, states:
THEREFORE, the Governments of the Republic of the Philippines and of the United States of America agree upon the following terms for the delimitation, establishment, maintenance, anJ operation of military bases in the Philippines.
155 1947 MBA, Article XXIX; see Annexes A and B of the 1947 MBA.
156 The 1947 MBA Whereas clause states:
Whereas, the Governments of the Republic of the Philippines and of the United States of America are desirous of cooperating in the common defense of their two countries through arrangements consonant with the procedures and objectives of the United Nations, and particularly through a grant to the United States of America by the Republic of the Philippines in the exercise of its title and sovereignty, of the use, free of rent, in furtherance of the mutual interest of both countries, of certain lands of the public domain; xx x (Emphases supplied)
157 1947 MBA, Whereas Clause, Articles II and III.
158 Id, Articles II, III, IV, VI, and VII.
159 Id, Article XXV (I).
160 Id., Article XXVII.
161 Id., Articles XI, XII. XIII, XIV, and XV.
162 The Ramos-Rusk Agreement nf 1966 reduced the term of the 1947 Bases Treaty to a total of 44 years or until 1991.
The Bohlen-Serrano Memorandum Agreement provided for the return to the Philippines of 17 U.S. military bases. .
The Romulo-Murphy exchange of Notes of 1979 recognized Philippine sovereignty over the Clark and Subic Bases, reduced the area that could be used by the U.S. military, and provided for the mandatory review of the 1947 Bases Treaty every five years.
The Romualdez-Armacost Agreemenf of 1983 revised the 1947 Bases Treaty, particularly pertaining to the operational use of military bases by the U.S. government within the context of Philippine sovereignty, including the need for prior consultation with the Philippine government on the former's use of the bases for military combat operations or the establishment of long-range missiles.
The 1947 Military Assistance Agreement (1947 MAA) entered into by the President with the U.S. pursuant to the authority granted under Republic Act No. 9. The Agreement established the conditions under which the U.S. military assistance would be granted to the Philippines, particularly the provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the latter's defense forces.
The 1953 Exchange of Notes Constituting an Agreement Extending the Agreement Between the Government of the Republic of the Philippines and the Government of the United States of America on Military Assistance to the Philippines (1953 Agreement) clarified that the 1947 Agreement would remain in force until terminated by any of the parties.
163 See Romulo-Murphy Exchange of Notes of 1979.
164 See Official Gazette, Report of President Marcos to the Batasang Pambansa, January 15, 1979.
165 Bayan v. Zamora, supra note 69, at 632, which states:
In view of the impending expiration of the RP-U.S. Military Bases Agreement in 1991, the Philippines and the U.S. negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-U.S. Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of U.S. military bases in the Philippines.
166 Philippine Communications Satellite Corporation v. Globe Telecom, Inc., 473 Phil. 116, 122 (2004), which states:
On 31 December 1991, the Philippine Government sent a Note Verbale to the U.S. Government through the U.S. Embassy, notifying it of the Philippines' termination of the RP-US Military Bases Agreement. The Note Verba/e stated that since the RP-US Military Bases Agreement, as amended, shall terminate on 31 December 1992, the withdrawal of all U.S. military forces from Subic Naval Base should be completed by said date.
167 Gerald Anderson. Subic Bay From Magellan to Pinatubo: The History of the US Naval Station, Subic Bay (2006), p. 181. Available at https://books.google.com.ph/books?id=OfPs0NH5EuAC&printsec=frontcover&dq=subic+bay+from+magellan+to+pinatubo& hl=en&sa=X&ved=0ahUKEwjvitrLrNjJAhUBJ5QKHcBICAUQ6AEIJDAA#v= onepage&q=subic%20bay%20from%20magellan%20to%20pinatubo&f=false.
168 Bruce Vaughn. "U.S. Strategic and Defonse Relationships in the Asia-Pacific Region" U.S. Congressional Research Service Report for Congress (January 22, 2007). Available at https://www.fas.org/sgp/crs/row/RL33821.pdf.
169 R. Chuck Mason. "Status of Forces Agreement (SOFA): What is it, how is it utilized?" U.S. Congressional Research Service Report for Congress (March 15, 2012). Available at https://www.fas.org/sgp/crs/natsec/RL34531.pdf.
170 For an illustrated depiction of the increase of U.S. military bases around the world before (1939) and after (1945) World War Ill, see David Vine, supra note 77, at 32-36.
171 See Mason, supra note 169, stating that the U.S. and Germany entered into a supplemental agreement to the NATO SOFA (as provided in 14 U.S.T. 531; T.I.A.S. 5351. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963) and additional exchange of notes related to specific issues (14 U.S.T. 689; T.I.A.S. 5352; 490 U.N.T.S. 30. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963).
Also, the Manila Pact entered into on September 8, 1954 by the U.S., the Philippines, Australia, France, New Zealand, Pakistan, and Thailand, whereby the parties agreed, among others, to: settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations; and separately and jointly, by means of continuous and effective self-help and mutual aid will maintain and develop their individual and collective capacity to resict armed attack and to prevent and counter subversive activities directed from without against their territorial integrity and political stability. See Southeast Asia Collective Defense Treaty (September 8, 1954 ). 209 U.N.T.S. 28-30. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20209/v209.pdf.
172 For example, the U.S. entered into supplementary agreement with the Federal Republic of Germany (which acceded to the NATO-SOFA in 1963) with respect to allied forces stationed pennanently in Germany, see Dieter Fleck, The Handbook of the Law on Visiting Forces (2001), p. 353.
173 The 1951 MDT states the Parties' objective "[d]esiring to declare publicly and formally their sense of unity and their common detennination to defend themselves against external armed attack, so that no potential aggressor could be under the illus inn that either of them stands alone in the Pacific Area."
174 1951 MDT, Article II.
175 Id., Article III.
176 Id., Article IV.
177 Id., Article V.
178 Id., Article VIII.
179 Lim v. Executive Secretary, 430 Phil 555, 562 (2002), which states: These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951.
180 See H. Marcos Modemo, "A Decade of US Troops in Mindanao: Revisiting the Visiting Forces Agreement (2)" MindaNews, April 24, 2012, available at http://www.mindanews.com/special-reports/2012/04/24/a-decade-of-us-troops-in-mindanao-revisiting-the-visiting-forces-agreement-2/.
181 1998 VFA, Article V.
182 Supra note 69.
183 Id. at 652, which states:
On the whole, the VFA is an agreemc'lt which defines the treatment of United States troops and personnel visiting the Philippiries. 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, Artic1e XVIJI, 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, tJ;c provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of detennining the number of votes required to obtain th·e va1id concurrence of the Senate, as will be further discussed hereunder.
184 Id. at 657, which states:
This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United State of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
185 Joaquin Bernas, supra note 144, at l 400-l 401.
186 See Kurt Campbell & Brian Andrews, Explaining the US ‘Pivot’ to Asia, August 2013, Chatham House, pp. 3-8. Available at https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Americas/0813pp_pivottoasia.pdf.
187 Id. at 8.
188 Ibid.
189 EDCA, Preamble, par. 5.
190 Id., Article IV, par. 6.
191 Id., Article I.
192 Id., Article III.
193 Id., Article XII(4).
194 V Records, Constitutional Commission 105. (October 11, 1986), which reads:
Mr. Bennagen: Point of information. I have with me a book of Patricia M. Paez, The Bases Factor, the authority on US relations. And reference to the agreement reads this way: Agreement between the Republic of the Philippines and the United States of America concerning military bases.
Mr. Azcuna: That is the official title. Why do we not use that? After the expiration of the agreement xx x.
195 Ibid.
196 Samson Alcantara. Statutes (1997 ed.) at 58; Sec also Ruben Agpalo, Statutory Construction (6th ed) at 282.
197 Ernesto v. Court of Appeals, 216 Phil. 319, 327-328 (1984).
198 US Department of Defense, Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms, at 21 (2015), available at <http://www.dtic.mil/doctrine/new pubs/jpl 02.pdf>.
199 Presidential Decree No. 1227, Section 2.
200 IV Records, Constitutional Commission 86 (September 18, 1986):
Fr. Bernas: By the term 'bases,' were we thinking of permanent bases?
Mr. Maambong: Yes.
201 US DoD, Strengthening U.S. Global Defense Posture: Report to Congress, U.S. Department of Defense, (2004), pp. 10-11. Available at http://www.dmzhawaii.org/wp-content/uploads/2008/12/global_posture.pdf.
202 Andrew Krepinevich and Robert Work. A New Global Defense Posture for the Second Transoceanic Era (2007), p. 19.
203 Krepinevich and Work, supra note 201, at 18.
204 US DoD, supra note 201, at 10-11.
205Bruno Charbonneau and Wayne Cox. Locating Global Order: American Power and Canadian Security after 9/11 (2010), p. 65.
206 Stacie Pettyjohn. "Minimalist International Interventions: For the Future US Overseas Presence, Access Agreement Are Key" Summer 2013, RAND Corporation, available at http://www.rand.org/pubs/periodicals/rand-review /issues/2013/summer/for-the-future-us-overseas-presence.html.
207 Id. at 2.
208 EDCA, Article III Sec. 1.
209 Id., Article V, Section 2.
210 Id., Article IV, Sec. 1.
211 Id.
212 Supra note 109, at 653.
In like manner x x x such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities – any of the three standing alone places it under the coverage of Section 25, Article XVIII.
213 EDCA, Article II, Section 2.
214 Id., Article Ill, Section I.
215 Id, Article XII, Section 4.
216 The senators argued the precise length of time but agreed that it would not exceed six months. See Senate deliberations on P.S. Res. No. 443 -- Visiting Forces Agreement, May 17, 1999, Records and Archives Service, Vol. 133, pp. 23-25.
217 Ponencia, pp. 48-66.
218 1951 MDT, Preamble, par. 3.
219 Supra note 179, at 571-572.
220 Ponencia, pp. 54-63.
221 Mutual Defense Treaty, U.S.-South Korea, October 1, 1953, 238 U.N.T.S. 202,204. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20238/v238.pdf.
222 Mutual Defense Treaty, U.S.-Taiwan, December 10, 1954, 248 U.N.T.S. 214. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20248/v248.pdf.
223 Treaty of Mutual Co-operation and Security, U.S.-Japan, January 19, 1960, 373 U.N.T.S. 188. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20373/v373.pdf.
224 The US-Taiwan MDT states that self-help and mutual aid will be utilized by the Parties to resist not only an armed attack but also "communist subversive activities 'directed against Taiwan's territorial integrity and political stability." Moreover, the US-Korean Treaty adds the phrase "whenever, in the opinion of either of them, the political independence or security of either of the Parties is threatened by external armed attack" and uses the phrase ''means to deter [an] armed attack") instead of"maintain and develop xx x their capacities to resist armed attack."
225 Mutual Defense Treaty, U.S.-South Korea, supra note 221.
226 Mutual Defense Treaty, U.S.-Taiwan. supra; note 222.
227 Treaty of Mutual Co-operation and Security U.S.-Japan, supra note 223.
228 1998 VFA, Article III(l).
229 Bayan v. Zamora, supra note 69. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.
230 Ibid.
231 Supra note 179, at 572.
232 1998 VFA, Preamble, par. 4.
233 Lim v. Executive Secretary, supra note 179, at 575. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nations marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like.
234 EDCA, Article II(4).
235 Id, Article III(1).
236 Id., Article I(3).
237 Ibid.
238 Id., Article III(1)
239 Ibid.
240 Ibid.
241 Id., Article VII(2).
242 Id.. Article IV(1), (3).
243 Ponencia, pp. 50-51.
244 Ibid.
245 Senate deliberations, May 25, 1999, A.M., p. 17, which reads:
Senator Tatad. x x x Mr. President, distinguished colleagues, the Visiting Forces Agreement does not create a new policy or a new relationship. It simply seeks to implement and reinforce what already exists.
For that purpose, an executive agreement might have sufficed, were there no constitutional constraints. But the Constitution requires the Senate to concur in all international agreements. So the Senate must concur in the Visiting Forces Agreement, even if the U.S. Constitution does not require the U.S. Senate to give its advice and consent.
246 Senate Resolution No. 1414, supra note 107.
247 During the latter part of the Cold War, the term "facilities" was frequently substituted for the word "bases" to soften the negative political overtones normally associated with the basing of foreign troops in a sovereign country. In line with this thinking, the Stockholm International Peace Research Institute uses the term foreign military presence (FMP) to describe bases/facilities that house foreign troops in a sovereign state. See Krepinevich and Work, supra note 202.
248 Strengthening U.S. Global Defense Posture: Report to Congress, supra note 201.
249 Ibid.
250 See Jose Gomez del Prado. Privatization of War: Mercenaries, Private Military and Security Companies, Global Research, November 3, 2010. Available at http://www.globalresearch.ca/the-privatization-of-war-mercenaries-private-military-and-security-companies-pmsc/21826.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
"Para kayong mga birhen na naniniwala sa pag-ibig ng isang puta! "1
- Heneral Luna kina Pedro Paterno, Felix Buencamino, at
Emilio Aguinaldo noong sinabi nila na nangako ang mga Amerikano
na kikilalanin nila ang kasarinlan ng mga Pilipino
LEONEN, J.:
1987 Constitution, Article XVIII, Section 25:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
In a disturbing turn of events, the majority of this court just succeeded in amending this constitutional provision. At the very least, it emasculated its tex.t and weakened its spirit.
An agreement signed by our Secretary of Defense and the Ambassador of the United States that grants United States military personnel and their contractors operational control over unspecified locations within Philippine territory in order to pre-position military equipment as well as to use as launching pads for operations in various parts of the globe is not binding until it is concurred in by the Senate. This is in accordance with Article XVIII, Section 25 and Article VII, Section 21 of the Constitution.
Furthermore, the Enhanced Defense Cooperation Agreement (EDCA) does not simply implement the Agreement Between the Government of the United States of America and the Government of the Republic of the Philippines Regarding the Treatment of United States Armed Forces Visiting the Philippines (Visiting Forces Agreement or VFA). The EDCA substantially modifies or amends the VFA. An executive agreement cannot amend a treaty. Nor can any executive agreement amend any statute, most especially a constitutional provision.
The EDCA substantially modifies or amends the VFA in the following aspects:
First, the EDCA does not only regulate the "visits" of foreign troops. It also allows the temporary stationing on a rotational basis of US military personnel and their contractors in physical locations with permanent facilities and pre-positioned military materiel.
Second, unlike the VFA, the EDCA allows pre-positioning of military materiel, which can include various types of warships, fighter planes, bombers, and vessels, as well as land and amphibious vehicles and their corresponding ammunition.
Third, the VFA contemplates the entry of troops for various training exercises. The EDCA allows our territory to be used by the United States to launch military and paramilitary operations to be conducted within our territory or against targets in other states.
Fourth, the EDCA introduces the following concepts not contemplated in the VFA or in the 1951 Mutual Defense Treaty, namely: (a) agreed locations; (b) contractors; (c) pre-positioning of military materiel; and (d) operational control.
Lastly, the VFA does not have provisions that may be construed as a restriction or modification of obligations found in existing statutes. The EDCA contains provisions that may affect various statutes, including (a) the jurisdiction of courts, (b) local autonomy, and (c) taxation.
There is no showing that the new matters covered in the EDCA were contemplated by the Senate when it approved the VFA. Senate Resolution No. 105, Series of 2015, which expresses the sentiment of that legislative chamber, is a definite and unequivocal articulation of the Senate: the VFA was not intended to cover the matters now included in the EDCA. In the view of the Senate reading the same provisions of the Constitution as we do, the EDCA should be in treaty form.
The EDCA, in its current form, is only an official and formal memorial of agreed provisions resulting from the negotiations with the United States. The President has the discretion to submit the agreement to the Senate for concurrence. The EDCA is a treaty and requires Senate concurrence.
I
The EDCA should comply with Article XVIII, Section 25 of the Constitution.
Bayan v. Zamora2 interpreted the scope of this provision when it discussed the constitutionality of the VFA. Similar to the EDCA, the VFA was a product of negotiations between the two governments relating to mutual security interests. Unlike the EDCA, however, the VFA was submitted to the Senate for concurrence, thus:
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino, Jr., to exchange notes on "the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted [in] a final series of conferences and negotiations that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.
On October 6, 1998, the President, acting through respondent Executive Secretary Ronalda Zamora, officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 recommending the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard.3 (Citations omitted)
Bayan held that Article XVIII, Section 25 of the Constitution applies to the VFA:
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty - the VFA, in the instant case - be "duly concurred in by the Senate," it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two-thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to Section 21, Article VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty - the VFA in the instant case.
. . . .
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.
. . . .
This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.4
Lim v. Executive Secretary5 further explored the scope of the VFA as it dealt with the constitutionality of the Terms of Reference of the "Balikatan 02-1" joint military exercises between the Philippines and the United States:
The Terms of Reference rightly fall within the context of the VFA.
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.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1," the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim "Nerno potest facere per aliurn quad non potest facere per directurn." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory.6 (Emphasis supplied)
Nicolas v. Romulo 7 involved the grant of custody of Lance Corporal Daniel Smith to the United States pursuant to the VFA and reiterated the ruling in Bayan:
[A]s an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case-Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution. 8
The controversy now before us involves more than the VFA. Reading the entirety of the Constitution is necessary to fully appreciate the context of the interpretation of Article XVIII, Section 25.
II
Foreign policy indeed includes security alliances and defense cooperation among states. In the conduct of negotiations and in the implementation of any valid and binding international agreement, Article II of the Constitution requires:
Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
. . . .
Section 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Article 2(4) of the Charter of the United Nations similarly provides that "[a ]11 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."9
Our use of force is not completely proscribed as the Charter of the United Nations provides for the inherent right of individual or collective self-defense:
CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
. . . .
Article 51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defen[s]e if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defen[ s ]e shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.10
Furthermore, falling within the penumbra on the use of force are pre- emptive self-defense,11 self-help, and humanitarian interventions.12
Another exception would be the collective security system set up under the Charter of the United Nations, with the Security Council acting in accordance with Chapter VII of the Charter. Under Article 42:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.13
We fall within this exception when we participate in the enforcement of the resolutions of the Security Council.14
Generally, the President's discretion is plenary in matters falling within executive functions. He is the chief executive,15 having the power of control over all executive departments, bureaus, and offices.16 Further, "by constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country [and] [i]n many ways, the President is the chief architect of the nation's foreign policy."17
The President is also the Commander-in-Chief of all armed forces of the Philippines.18 He has the power to "call out such armed forces to prevent or suppress lawless violence, invasion or rebellion ... suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law"19 subject to the conditions and requisites under the provision.
However, the President's discretion to allow our participation in the use of force-whether by committing our own military assets and personnel or by allowing our territory to be used as waypoints, refueling or staging areas-is also constrained by the Constitution. In this sense, the power of the President as Commander-in-Chief and head of state is limited by the sovereign through judicially determinable constitutional parameters.
III
With respect to the use of or threat to use force, we can discern a gradation of interrelations of the legislative and executive powers to ensure that we pursue "an independent foreign policy" in the context of our history.
Article VI, Section 23 of the Constitution covers declarations of a state of war. It is vested solely in Congress, thus:
Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
Informed by our history and to ensure that the independence of our foreign policy is not compromised by the presence of foreign bases, troops, or facilities, the Constitution now provides for treaty recognition, Senate concurrence, and public ratification when required by Congress through Article XVIII, Section 25, thus:
Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
The prohibition in Article XVIII, Section 25 relates only to international agreements involving foreign military bases, troops, or facilities. It does not prohibit the President from entering into other types of agreements that relate to other aspects of his powers as Commander-in-Chief.
In Bayan:
Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.
. . . .
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.20 (Emphasis supplied)
"Foreign military bases, troops, and facilities" should not be read together but separately. Again, in Bayan:
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient" and "permanent." Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not distinguish-Ubi lex non distinguit nee nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops or facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration, such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to 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 requirements will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything."
Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA.
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.21 (Citations omitted)
The ponencia, among others, interprets "shall not be allowed" as being limited to the "initial entry" of bases, troops, or facilities.22 Subsequent acts are treated as no longer being subject to Article XVIII, Section 25 and are, therefore, only limited by other constitutional provisions and relevant laws.23
This interpretation is specious and ahistorical.
There is nothing in Article XVIII, Section 25 that defines the extent and scope of the presence of foreign military bases, troops, or facilities, thereby justifying a distinction between their initial entry and subsequent activities. Its very structure shows that Article XVIII, Section 25 is not a mere gateway for the entry of foreign troops or facilities into the Philippines for them to carry out any activity later on.
The provision contains measures designed to protect our country in the broader scheme of international relations. Military presence shapes both foreign policy and political relations. War-or the threat thereof through the position of troops, basing, and provision of military facilities-is an extension of politic, thus:
The use of military force is a means to a higher end-the political object. War is a tool that policy uses to achieve its objectives and, as such, has a measure of rational utility. So, the purpose for which the use of force is intended will be the major determinant of the course and character of a war. As Clausewitz explains, war "is controlled by its political object," which "will set its course, prescribe the scale of means and effort which is required, and makes its influence felt throughout down to the smallest operational detail.24
With respect to the entry and presence of foreign military bases, troops, and facilities, Article XVIII, Section 25 of the 1987 Constitution enables government to politically negotiate with other states from a position of equality. The authority is not exclusively granted to the President. It is shared with the Congress. The Senate participates because no foreign base, troop, or facility may enter unless it is authorized by a treaty.
There is more evidence in the text of the provision of a sovereign intent to require conscious, deliberate, and public discussion regarding these issues.
The provision gives Congress, consisting of the Senate and the House of Representatives, the option to require that the treaty become effective only when approved by a majority of the people in a referendum. Furthermore, there is the additional requirement that the authority will be absent if the other state does not treat the same instrument that allows their bases, troops, and facilities to enter our territory as a treaty.
The provision ensures equality by requiring a higher level of public scrutiny. Unlike in the past when we bargained with the United States from a position of weakness, the Constitution opens the legislative forum so that we use the freedoms that we have won since 1946 to ensure a fair agreement. Legislative hearings make the agreements more publicly legible. They allow more criticism to be addressed. Public forums clarify to the United States and other foreign military powers interested in the Philippines the full extent of interest and the various standpoints of our different constituents. As a mechanism of public participation, it also assures our treaty partners of the durability of the various obligations in these types of security arrangements.
The EDCA was negotiated in private between representatives of the President and the United States. The complete text of the negotiations was presented to the public in time for the visit of the President of the United States. During its presentation, the President's representatives took the position that no further public discussion would be held that might affect the terms of the EDCA. The President presented the EDCA as a final product withdrawn from Senate or Congressional input. The President curtailed even the possibility of full public participation through a Congressional Resolution calling for a referendum on this matter.
The Separate Opinion of former Chief Justice Puno in Bayan provides a picture of how the Constitutional Commission recognized the lopsided relationship of the United States and the Philippines despite the 1951 Mutual Defense Treaty and the 1947 Agreement Between the United States of America and the Republic of the Philippines Concerning Military Bases (1947 Military Bases Agreement):
To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the Constitution, it is necessary to ascertain the intent of the framers of the Constitution as well as the will of the Filipino people who ratified the fundamental law. This exercise would inevitably take us back to the period in our history when U.S. military presence was entrenched in Philippine territory with the establishment and operation of U.S. Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military Bases Agreement. As articulated by Constitutional Commissioner Blas F. Op le 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. This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty. Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the commission emerged that this anomalous asymmetry must never be repeated. To correct this historical aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and facilities should also be "recognized as a treaty by the other contacting party." In plain language, recognition of the United States as the other contracting party of the VFA should be by the US President with the advice and consent of the US Senate.
The following exchanges manifest this intention:
"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there anything in this formulation, whether that of Commissioner Bernas or of Commissioner Romulo, that will prevent the Philippine government from abrogating the existing bases agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I had taken the position from the beginning – and this is embodied in a resolution filed by Commissioners Natividad, Maambong and Regalado - that it is very important that the government of the Republic of the Philippines be in a position to terminate or abrogate the bases agreement as one of the options . . . . we have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are 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."
. . . .
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.
. . . .
FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for the agreement to reach the status of a treaty under their jurisdiction." 25 (Emphasis supplied)
By allowing the entry of United States military personnel, their deployment into undefined missions here and abroad, and their use of military assets staged from our territory against their present and future enemies based on a general provision in the VFA, the majority now undermines the measures built into our present Constitution to allow the Senate, Congress and our People to participate in the shaping of foreign policy. The EDCA may be an agreement that "deepens defense cooperation"26 between the Philippines and the United States. However, like the 1947 Military Bases Agreement, it is the agreement more than any other that will extensively shape our foreign policy.
IV
Article VII, Section 21 of the Constitution complements Article XVIII, Section 25 as it provides for the requisite Senate concurrence, thus:
Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
The provision covers both "treaty and international agreement." Treaties are traditionally understood as international agreements entered into between states or by states with international organizations with international legal personalities.27 The deliberate inclusion of the term "international agreement" is the subject of a number of academic discussions pertaining to foreign relations and international law. Its addition cannot be mere surplus. Certainly, Senate concurrence should cover more than treaties.
That the President may enter into international agreements as chief architect of the Philippines' foreign policy has long been acknowledged.28 However, whether an international agreement is to be regarded as a treaty or as an executive agreement depends on the subject matter covered by and the temporal nature of the agreement.29 Commissioner of Customs v. Eastern Sea Trading30 differentiated international agreements that require Senate concurrence from those that do not:
International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.31 (Emphasis in the original)
Indeed, the distinction made in Commissioner of Customs in terms of international agreements must be clarified depending on whether it is viewed from an international law or domestic law perspective. Dean Merlin M. Magallona summarizes the differences between the two perspectives:
From the standpoint of Philippine constitutional law, a treaty is to be distinguished from an executive agreement, as the Supreme Court has done in Commissioner of Customs v. Eastern Sea Trading where it declares that "the concurrence of [the Senate] is required by our fundamental law in the making of 'treaties' ... which are, however, distinct and different from 'executive agreements,' which may be validly entered into without such concurrence."
Thus, the distinction rests on the application of Senate concurrence as a constitutional requirement.
However, from the standpoint of international law, no such distinction is drawn. Note that for purposes of the Vienna Convention on the Law of Treaties, in Article 2(1)(a) the term "treaty" is understood as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." ... The Philippines is a party to the Convention which is already in force. In the use of the term "treaty," Article 2(1)(a) of the Vienna Convention on the Law of Treaties between States and International Organizations, which is not yet in force, the designation or appellation of the agreement also carries no legal significance. Provided the instruments possess the elements of an agreement under international law, they are to be taken equally as "treaty" without regard to the descriptive names by which they are designated, such as "protocol," "charter," "covenant," "exchange of notes," "modus vivendi," "convention," or "executive agreement."32 (Emphasis supplied, citations omitted)
Under Article 2(2)33 of the Vienna Convention on the Law of Treaties, in relation to Article 2(1)(a),34 the designation and treatment given to an international agreement is subject to the treatment given by the internal law of the state party.35 Paragraph 2 of Article 2 specifically safeguards the states' usage of the terms "treaty" and "international agreement" under their internal laws.36
Within the context of our Constitution, the requirement for Senate concurrence in Article VII, Section 21 of the Constitution connotes a special field of state policies, interests, and issues relating to foreign relations that the Executive cannot validly cover in an executive agreement:
As stated above, an executive agreement is outside the coverage of Article VII, Section 21 of the Constitution and hence not subject to Senate concurrence. However, the demarcation line between a treaty and an executive agreement as to the subject-matter or content of their coverage is ill-defined. The courts have not provided reliable guidelines as to the scope of executive-agreement authority in relation to treaty-making power.
If executive-agreement authority is un-contained, and if what may be the proper subject-matter of a treaty may also be included within the scope of executive-agreement power, the constitutional requirement of Senate concurrence could be rendered meaningless. The requirement could be circumvented by an expedient resort to executive agreement.
The definite provision for Senate concurrence in the Constitution indomitably signifies that there must be a regime of national interests, policies and problems which the Executive branch of the government cannot deal with in terms of foreign relations except through treaties concurred in by the Senate under Article VII, Section 21 of the Constitution. The problem is how to define that regime, i.e., that which is outside the scope of executive-agreement power of the President and which exclusively belongs to treaty-making as subject to Senate concurrence.37 (Emphasis supplied)
Thus, Article VII, Section 21 may cover some but not all types of executive agreements. Definitely, the determination of its coverage does not depend on the nomenclature assigned by the President.
Executive agreements are international agreements that pertain to mere adjustments of detail that carry out well-entrenched national policies and traditions in line with the functions of the Executive. It includes enforcement of existing and valid treaties where the provisions are clear. It involves arrangements that are of a temporary nature. More importantly, it does not amend existing treaties, statutes, or the Constitution.
In contrast, international agreements that are considered treaties under our Constitution involve key political issues or changes of national policy. These agreements are of a permanent character. It requires concurrence by at least two-thirds of all the members of the Senate.
Even if we assume that the EDCA's nomenclature as an "executive agreement" is correct, it is still the type of international agreement that needs to be submitted to the Senate for concurrence. It involves a key political issue that substantially alters or reshapes our national and foreign policy.
Fundamentally however, the President's classification of the EDCA as a mere "executive agreement" is invalid. Article XVIII Section 25 requires that the presence of foreign troops, bases, and facilities must be covered by an internationally binding agreement in the form of a treaty concurred in by the Senate.
V
The Solicitor General, on behalf of government, proposes that we should view the EDCA merely as an implementation of both the Mutual Defense Treaty and the VFA. In his view, since both the Mutual Defense Treaty and the VFA have been submitted to the Senate and concurred in validly under the governing constitutional provisions at that time, there is no longer any need to have an implementing agreement similarly submitted for Senate concurrence.
The Chief Justice, writing for the majority of this court, agrees with the position of the Solicitor General.
I disagree.
The proposal of the Solicitor General cannot be accepted for the following reasons: (1) the Mutual Defense Treaty, entered into in 1951 and ratified in 1952, cannot trump the constitutional provision Article XVIII, Section 25; (2) even the VFA, which could have been also argued as implementing the Mutual Defense Treaty, was presented to the Senate for ratification; (3) the EDCA contains significant and material obligations not contemplated by the VFA; and (4) assuming arguendo that the EDCA only provides the details for the full implementation of the VFA, Article XVIII, Section 25 still requires that it at least be submitted to the Senate for concurrence, given the history and context of the constitutional provision.
VI
The 1951 Mutual Defense Treaty cannot be the treaty contemplated in Article XVIII, Section 25. Its implementation through an executive agreement, which allows foreign military bases, troops, and facilities, is not enough. If the Mutual Defense Treaty is the basis for the EDCA as a mere executive agreement, Article XVIII, Section 25 of the Constitution will make no sense. An absurd interpretation of the Constitution is no valid interpretation.
The Mutual Defense Treaty was entered into by representatives of the Philippines and the United States on August 30, 1951 and concurred in by the Philippine Senate on May 12, 1952. The treaty acknowledges that this is in the context of our obligations under the Charter of the United Nations. Thus, Article I of the Mutual Defense Treaty provides:
The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.
Further, the treaty expresses the desire of the parties to "maintain and develop their individual and collective capacity to resist armed attack." Thus, in Article III of the Treaty:
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.
While these provisions in the 1951 Mutual Defense Treaty could reasonably be interpreted to include activities done jointly by the Philippines and the United States, nothing in International Law nor in the Constitution can be reasonably read as referring to this treaty for the authorization for "foreign military bases, troops, or facilities" after the ratification of the 1987 Constitution.
Again, the constitutional provision reads:
Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Emphasis supplied)
There is a time stamp to the obligation under this provision. The prohibition against "foreign military bases, troops, or facilities," unless covered by treaty or allowed through a referendum, becomes effective "after the expiration in 1991 of the Agreement ... concerning Military Bases." The treaty about to expire refers to the 1947 Military Bases Agreement as amended. This was still in effect at the time of the drafting, submission, and ratification of the 1987 Constitution.
The constitutional timeline is unequivocal.
The 1951 Mutual Defense Treaty was in effect at the time of the ratification of the Constitution in 1987. It was also in effect even after the expiration of the Military Bases Agreement in 1991. We could reasonably assume that those who drafted and ratified the 1987 Constitution were aware of this legal situation and of the broad terms of the 1951 treaty yet did not expressly mention the 1951 Mutual Defense Treaty in Article XVIII, Section 25. We can conclude, with sturdy and unassailable logic, that the 1951 treaty is not the treaty contemplated in Article XVIII, Section 25.
Besides, the Executive also viewed the VFA as an implementation of the 1951 Mutual Defense Treaty. Yet, it was still submitted to the Senate for concurrence.
Parenthetically, Article 62 of the Vienna Convention on the Law of Treaties38 provides for the principle of "rebus sic stantibus, " in that a fundamental change of circumstances may be a ground to terminate or withdraw from a treaty.39 Dean Merlin M. Magallona is of the view that there has been a fundamental change in circumstances that allows the Philippines to terminate the 1951 Mutual Defense Treaty.40 Although we should acknowledge this suggestion during the oral arguments by petitioners, we do not need to go into such an issue and at this time to be able to resolve the controversies in this case. We await a case that will provide a clearer factual backdrop properly pleaded by the parties.
In addition, the Mutual Defense Treaty is not the treaty contemplated by Article XVIII, Section 25 on account of its subject matter. In Paragraph 5 of its Preamble, the Mutual Defense Treaty articulates the parties' desire "to strengthen their present efforts to collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area." Article II further clarifies the treaty's purpose:
Article II
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. (Emphasis supplied)
Clearly, none of its provisions provide specifically for the presence of a base, troops, or facilities that will put it within the ambit of Article XVIII, Section 25. Its main aim is to provide support against state enemies effectively and efficiently. Thus, for instance, foreign military bases were covered in the 1947 Military Bases Agreement.
The VFA cannot also be said to be the treaty required in Article XVIII, Section 25. This is because the United States, as the other contracting party, has never treated it as such under its own domestic laws. The VFA has the same status as that of the 1947 Military Bases Agreement in that it is merely an executive agreement on the part of United States:
As articulated by Constitutional Commissioner Blas F. Ople in the 1986 Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere executive agreement. This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty.41 (Emphasis supplied)
In Nicolas, Associate Justice Antonio T. Carpio himself underscored the non-treaty status of the Visiting Forces Agreement in light of Medellin v. Texas42 in his Separate Opinion, thus:
Under Medellin, the VFA is indisputably not enforceable as domestic federal law in the United States. On the other hand, since the Philippine Senate ratified the VFA, the VFA constitutes domestic law in the Philippines. This unequal legal status of the VFA violates Section 25, Article XVIII of the Philippine Constitution, which specifically requires that a treaty involving the presence of foreign troops in the Philippines must be equally binding on the Philippines and on the other contracting State.
In short, the Philippine Constitution bars the efficacy of such a treaty that is enforceable as ·domestic law only in the Philippines but unenforceable as domestic law in the other contracting State. The Philippines is a sovereign and independent State. It is no longer a colony of the United States. This Court should not countenance an unequal treaty that is not only contrary to the express mandate of the Philippine Constitution, but also an affront to the sovereignty, dignity and independence of the Philippine State.
There is no dispute that Section 25, Article XVIII of the Philippine Constitution governs the constitutionality of the VFA. Section 25 states:
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.
The clear intent of the phrase "recognized as a treaty by the other contracting State" is to insure that the treaty has the same legal effect on the Philippines as on the other contracting State. This requirement is unique to agreements involving the presence of foreign troops in the Philippines, along with the requirement, if Congress is so minded, to hold a national referendum for the ratification of such a treaty.
The deliberations of the Constitutional Commission reveal the sensitivity of the framers to the "unacceptable asymmetry" of the then existing military bases agreement between the Philippines and the United States. The Philippine Senate had ratified the military bases agreement but the United States Government refused to submit the same to the U.S. Senate for ratification. Commissioner Blas Ople explained this "unacceptable asymmetry" in this manner:
. . . But I think we have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this and, therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the government of our country will deem it in the national interest to terminate this agreement or even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement. I think that is a very important point. I am glad to be reassured by the two Gentlemen that there is nothing in these proposals that will bar the Philippine government at the proper time from exercising the option of abrogation or termination.
Eventually, the Constitutional Commission required that any agreement involving the presence of foreign troops in the Philippines must be "recognized as a treaty by the other contracting State." This means that the other contracting State must recognize the agreement as a treaty, as distinguished from any other agreement, and if its constitutional processes require, submit the agreement to its proper legislative body for ratification as a treaty. As explained by Commissioner Father Joaquin Bernas, S.J., during the deliberations of the Constitutional Commission:
Third, on the last phrase "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING NATION," we enter into a treaty and we want the other contracting party to respect that document as a document possessing force in the same way that we respect it. The present situation we have is that the bases agreement is a treaty as far as we are concerned, but it is only an executive agreement as far as the United States is concerned, because the treaty process was never completed in the United States because the agreement was not ratified by the Senate.
So, for these reasons, I oppose the deletion of this section because, first of all, as I said, it does not prevent renegotiation. Second, it respects the sovereignty of our people and the people will be in a better position to judge whether to accept the treaty or not, because then they will be voting not just on an abstraction but they will be voting after examination of the terms of the treaty negotiated by our government. And third, the requirement that it be recognized as a treaty by the other contracting nation places us on the same level as any other contracting party.
The following exchanges in the Constitutional Commission explain further the meaning of the phrase "recognized as a treaty by the other contracting State":
FR. BERNAS: Let me be concrete, Madam President, in our circumstances. Suppose they were to have this situation where our government were to negotiate a treaty with the United States, and then the two executive departments in the ordinary course of negotiation come to an agreement. As our Constitution is taking shape now, if this is to be a treaty at all, it will have to be submitted to our Senate for its ratification. Suppose, therefore, that what was agreed upon between the United States and the executive department of the Philippines is submitted and ratified by the Senate, then it is further submitted to the people for its ratification and subsequently, we ask the United States: "Complete the process by accepting it as a treaty through ratification by your Senate as the United States Constitution requires," would such an arrangement be in derogation of sovereignty?
MR. NOLLEDO: Under the circumstances the Commissioner just mentioned, Madam President, on the basis of the provision of Section 1 that "sovereignty resides in the Filipino people," then we would not consider that a derogation of our sovereignty on the basis and expectation that there was a plebiscite.
x x x x x x x x x
FR. BERNAS: As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties.
MR. SUAREZ: Thank you for the clarification.
Under the 1935 Constitution, if I recall it correctly, treaties and agreements entered into require an exchange of ratification. I remember that is how it was worded. We do not have in mind here an exchange of ratification by the Senate of the United States and by the Senate of the Philippines, for instance, but only an approval or a recognition by the Senate of the United States of that treaty.
FR. BERNAS: When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for that agreement to reach the status of a treaty under their jurisdiction.
Thus, Section 25, Article XVIII of the Philippine Constitution requires that any agreement involving the presence of foreign troops in the Philippines must be equally legally binding both on the Philippines and on the other contracting State. This means the treaty must be enforceable under Philippine domestic law as well as under the domestic law of the other contracting State. Even Justice Adolfo S. Azcuna, the ponente of the majority opinion, and who was himself a member of the Constitutional Commission, expressly admits this when he states in his ponencia:
The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation where the terms and conditions governing the presence of foreign armed forces in our territory were binding on us but not upon the foreign State.
An "equally binding" treaty means exactly what it says – the treaty is enforceable as domestic law in the Philippines and likewise enforceable as domestic law in the other contracting State.43 (Emphasis in the original, citations omitted)
Surprisingly, through his Concurring Opinion in this case, Associate Justice Carpio has now abandoned his earlier views.
This court's interpretation of a treaty under Article XVIII, Section 25 in Bayan, which did away with the requirement that the agreement be recognized as a treaty by the other contracting party, has resulted in an absurd situation of political asymmetry between the United States and the Philippines. A relationship where both parties are on equal footing must be demanded, and from one state to another. The Philippine government must be firm in requiring that the United States establish stability in its international commitment, both by legislation and jurisprudence.
The doctrine laid down in Bayan, insofar as the VFA is concerned, should now be revisited in light of new circumstances and challenges in foreign policy and international relations.
VII
Even if we assume that the Mutual Defense Treaty and the VFA are the treaties contemplated by Article XVIII, Section 25 of the Constitution, this court must determine whether the EDCA is a valid executive agreement as argued by respondents.
It is not. The EDCA modifies these two agreements.
Respondents claim that the EDCA is an executive agreement and merely implements the Mutual Defense Treaty and VFA.44 In arguing that the EDCA implements the Mutual Defense Treaty, respondents state that the latter has two operative principles: (1) the Principle of Defensive Reaction under Article IV;45 and (2) the Principle of Defensive Preparation under Article II.46 According to respondents, "[t]he primary concern of the EDCA is the Principle of Defensive Preparation in order to enhance both parties' abilities, if required, to operationalize the Principle of Defensive Reaction."47 The specific goals enumerated in the EDCA demonstrate this:
56. The specific purposes of the EDCA-to "[s]upport the Parties' shared goal of improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), [to address its] short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities" properly fall within the MDT's objective of developing the defense capabilities of the Philippines and the US. The EDCA implements the MDT by providing for a mechanism that promotes optimal cooperation between the US and the Philippines.48
Similarly, respondents allege that the EDCA implements the VFA in relation to the entry of United States troops and personnel, importation and exportation of equipment, materials, supplies, and other property, and movement of vessels and aircraft in the Philippines.49 Respondents rely on this court's pronouncement in Lim that combat-related activities are allowed under the VFA:
61. Article I of the EDCA provides that its purposes are to support "the Parties' shared goal of improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), [to address its] short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities."
62. The Honorable Court in Lim ruled that these activities are already covered by the VFA. Under Lim, "maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities" are activities that are authorized to be undertaken in the Philippines under the VFA.
63. Article II of the EDCA reiterates the definition of "United States personnel" in the VFA which means "United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippines."
64. Article III of the EDCA provides for the "Agreed Locations" where the Philippines authorizes US to "conduct the following activities": "training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such other activities as the Parties may agree."
65. Article IV of the EDCA authorizes the prepositioning and storing of defense equipment, supplies and materiel. Under Article IV in relation to Article III of the EDCA, the "prepositioning of equipment, supplies and materiel" is an "activity" to be approved by the Philippine Government "through bilateral security mechanisms, such as the MDB and SEB."
66. In sum, what the EDCA does is to enhance the existing contractual security apparatus between the Philippines and the US, set up through the MDT and the VFA. It is the duty of the Honorable Court to allow this security apparatus enough breathing space to respond to perceived, anticipated, and actual exigencies.
As discussed earlier, an executive agreement merely provides for the detailed adjustments of national policies or principles already existing in other treaties, statutes, or the Constitution. It involves only the enforcement of clear and specific provisions of the Constitution, law, or treaty. It cannot amend nor invalidate an existing statute, treaty, or provision in the Constitution. It includes agreements that are of a temporary nature.
This is not the case with the EDCA.
The EDCA contains significant and material obligations not contemplated by the VFA. As an executive agreement, it cannot be given any legal effect. The EDCA substantially modifies and amends the VFA in at least the following aspects:
First, the EDCA does not only regulate the "visits" of foreign troops. It allows the temporary stationing on a rotational basis of United States military personnel and their contractors on physical locations with permanent facilities and pre-positioned military materiel.
Second, unlike the VFA, the EDCA allows the pre-positioning of military materiel, which can include various types of warships, fighter planes, bombers, land and amphibious vehicles, and their corresponding ammunition.
Third, the VFA contemplates the entry of troops for various training exercises. The EDCA allows our territory to be used by the United States to launch military and paramilitary operations conducted in other states.
Fourth, the EDCA introduces new concepts not contemplated in the VFA, namely: (a) agreed locations; (b) contractors; (c) pre-positioning of military materiel; and (d) operational control.
Lastly, the VFA did not have provisions that may have been construed as a restriction or modification of obligations found in existing statutes. The EDCA contains provisions that may affect various statutes including, among others, (a) the jurisdiction of courts, (b) local autonomy, and (c) taxation.
VIII
Article I(1)(b) of the EDCA authorizes United States forces access to "Agreed Locations" in the Philippines on a rotational basis.50 Even while the concept of "rotation" may refer to incidental and transient presence of foreign troops and contractors, the nature of the "Agreed Locations" is eerily similar to and, therefore, amounts to basing agreements.
"Agreed Locations" has been defined by the EDCA in Article II(4) as:
Facilities and areas that are provided by the Government of the Philippines through the AFP and that United states forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing agreements. (Emphasis supplied)
As treaties, the 1947 Military Bases Agreement and its various amendments specified the actual location of the physical locations of United States troops and facilities. The EDCA, however, now delegates the identification of the location not to a select Senate Committee or a public body but simply to our military representatives in the Mutual Defense Board and the Security Enhancement Board.
More importantly, the extent of access and use allowed to United States forces and contractors under the EDCA is broad. It is set out in Article III:
Article III
Agreed Locations
1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering Of vessels; temporary maintenance of vehicles, vessels, arid 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.
2. When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields).
3. Given the mutuality of benefits, the Parties agree that the Philippines shall make Agreed Locations available to United States forces without rental or similar costs. United States forces shall cover their necessary operation expenses with respect to their activities at the Agreed Locations.
4. The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations. United States forces shall consult on issues regarding such construction; alterations, and improvements on the Parties' shared intent that the technical requirements and construction standards of any such projects undertaken by or on behalf of United States forces should be consistent with the requirements and standards of both Parties.
. . . .
6. United States forces shall be responsible on the basis of proportionate use for construction, development, operation, and maintenance costs at Agreed Locations. Specific funding arrangements may be fined in Implementing arrangements. (Emphasis supplied)
Parsing the provisions carefully, we find that the Agreed Locations may be used for:
(1) training;
(2) transit;
(3) support and related activities;
(4) refueling of aircraft;
(5) bunkering of vessels;
(6) temporary maintenance of vehicles, vessels, and aircraft;
(7) temporary accommodation of personnel;
(8) communications;
(9) pre-positioning of equipment, supplies, and materiel;
(10) deploying forces and materiel; and
(11) other activities as the parties may agree.
There is no hierarchy among these activities. In other words, functions (2) to (11) need not be supportive only of training or transit. Function (10), which pertains to deployment of United States forces and materiel, can be done independently of whether there are training exercises or whether the troops are only in transit.
The permission to do all these activities is explicit in the EDCA. Government has already authorized and agreed that "United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces" may conduct all these activities. Carefully breaking down this clause in Article III(1) of the EDCA, the authorization is already granted to:
(a) "United States forces";
(b) "United States contractors"; and
(c) "vehicles, vessels, and aircraft operated by or for United States forces."
United States military forces will not only be allowed to "visit" Philippine territory to do a transient military training exercise with their Philippine counterparts. They are also allowed to execute, among others, the following scenarios:
One: Parts of Philippine territory may be used as staging areas for special or regular United States military personnel for intervention in conflict areas in the Southeast Asian region. This can be in the form of landing rights given to their fighter jets and stealth bombers or way stations for SEALS or other special units entering foreign territory in states not officially at war with the Philippines.
Two: Parts of Philippine territory may be used to supplement overt communication systems of the United States forces. For instance, cyberwarfare targeting a state hostile to the United States can be launched from any of the Agreed Locations to pursue their interests even if this will not augur well to Philippine foreign policy.
Three: Parts of Philippine territory may be used to plan, deploy, and supply covert operations done by United States contractors such as Blackwater and other mercenary groups that have been used by the United States in other parts of the world. The EDCA covers these types of operations within and outside Philippine territory. Again, the consequences to Philippine foreign policy in cases where targets are found in neighboring countries would be immeasurable.
The Visiting Forces Agreement does not cover these sample activities. Nor does it cover United States contractors.
IX
Blanket authority over Agreed Locations is granted under Article VI, Section 3 of the EDCA. The United States forces are given a broad range of powers with regard to the Agreed Locations that are "necessary for their operational control or defense."51 This authority extends to the protection of United States forces and contractors. In addition, the United States is merely obligated to coordinate with Philippine authorities the measures they will take in case they deem it necessary to take action.
In contrast, the Mutual Defense Treaty is different. It is specific to the maintenance and development of the Philippines and the United States' individual and collective capacity to resist armed attack. The parties' goal under the Mutual Defense Treaty is to enhance collective defense mechanisms for the preservation of peace and security in the Pacific area.52
While certain activities such as "joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall . . . under the provisions of the RP-US Mutual Defense Treaty,"53 the alleged principles of Defensive Reaction and Defensive Preparation do not license the ceding of authority and control over specific portions of the Philippines to foreign military forces without compliance with the Constitutional requirements.54 Such grant of authority and control over Agreed Locations to foreign military forces involves a drastic change in national policy and cannot be done in a mere executive agreement.
Moreover, nothing in the VFA provides for the use of Agreed Locations to United States forces or personnel, considering that the VFA focuses on the visitation of United States armed forces to the Philippines in relation to joint military exercises:
Preamble
The Government of the United States of America and the Government of the Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines[.](Emphasis supplied)
In Lim, the Terms of Reference55 of the "Balikatan 02-1" joint military exercises is covered by the VFA. Hence, under the VFA, activities such as joint exercises, which "include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like,"56 are authorized. However, Lim specifically provided for the context of the conduct of the combat-related activities under the VFA: President George W. Bush's international anti-terrorism campaign as a result of the events on September 11, 2001.57
Meanwhile, the EDCA unduly expands the scope of authorized activities to Agreed Locations with only a vague reference to the VFA:
Article I
Purpose and Scope
1. This Agreement deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT, which states that "the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual capacity to resist armed attack, and within the context of VFA. This includes:
(a) Supporting the Parties' shared goal of improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), addressing short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities; and
(b) Authorizing access to Agreed Locations in the territory of the Philippines by United States forces on a rotational basis, as mutually determined by the Parties.
2. In furtherance of the MDT, the Parties mutually agree that this Agreement provides the principal provisions and necessary authorizations with respect to Agreed Locations.
3. The Parties agree that the United States may undertake the following types of activities in the territory of the Philippines in relation to its access to and use of Agreed Locations: security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster relief activities; and such other activities as may be agreed upon by the Parties. (Emphasis supplied)
The VFA was ratified in 1998. However, in 2011, the Obama Administration announced its plan of intensifying its presence in the Asia-Pacific region.58 The United States hinges this pivot on maritime peace and security in the region in relation to a stable international economic order.59 Hence, their Department of Defense enumerates three maritime objectives: "to safeguard the freedom of the seas; deter conflict and coercion; and promote adherence to international law and standards."60
To achieve these objectives, the United States conducts operations, exercises, and training with several countries it considers allies in the region.61 Nevertheless, key to the United States' military strategy is the enhancement of its forward presence in the Asia-Pacific:
Force Posture
One of the most important efforts the Department of Defense has underway is to enhance our forward presence by bringing our finest capabilities, assets, and people to the Asia-Pacific region. The U.S. military presence has underwritten security and stability in the Asia-Pacific region for more than 60 years. Our forward presence not only serves to deter regional conflict and coercion, it also allows us to respond rapidly to maritime crises. Working in concert with regional allies and partners enables us to respond more effectively to these crises.
The United States maintains 368,000 military personnel in the Asia-Pacific region, of which approximately 97,000 are west of the International Date Line. Over the next five years, the US. Navy will increase the number of ships assigned to Pacific Fleet outside of US territory by approximately 30 percent, greatly improving our ability to maintain a more regular and persistent maritime presence in the Pacific. And by 2020, 60 percent of naval and overseas air assets will be home-ported in the Pacific region. The Department will also enhance Marine Corps presence by developing a more distributed and sustainable laydown model.
Enhancing our forward presence also involves using existing assets in new ways, across the entire region, with an emphasis on operational flexibility and maximizing the value of US assets despite the tyranny of distance. This is why the Department is working to develop a more distributed, resilient, and sustainable posture. As part of this effort, the United States will maintain its presence in Northeast Asia, while enhancing defense posture across the Western Pacific, Southeast Asia, and the Indian Ocean.
. . . .
In Southeast Asia, the Department is honing an already robust bilateral exercise program with our treaty ally, the Republic of the Philippines, to assist it with establishing a minimum credible defense more effectively. We are conducting more than 400 planned events with the Philippines in 2015, including our premier joint exercise, Balikatan, which this year was the largest and most sophisticated ever. During this year's Balikatan, more than 15, 000 US., Philippine, and Australian military personnel exercised operations involving a territorial defense scenario in the Sulu Sea, with personnel from Japan observing.62 (Emphasis supplied)
These changes in United States policy are reflected in the EDCA and not in the VFA. Thus, there is a substantial change of objectives.
If, indeed, the goal is only to enhance mutual defense capabilities under the Mutual Defense Treaty through conduct of joint military exercises authorized by the VFA, then it behooves this court to ask the purpose of providing control and authority over Agreed Locations here in the Philippines when it is outside the coverage of both the Mutual Defense Treaty and the VFA. Through a vague reference to the VFA, respondents fail to establish how the EDCA merely implements the VFA. They cannot claim that the provisions of the EDCA merely make use of the authority previously granted under the VFA. What is clear is that the Agreed Locations become a platform for the United States to execute its new military strategy and strengthen its presence in the Asia-Pacific, which is clearly outside the coverage of the VFA.
In addition, the EDCA does not merely implement the Mutual Defense Treaty and VFA when it provides for the entry of United States private contractors into the Philippines.
In the EDCA, United States contractors are defined as follows:
3. "United States contractors" means companies and firms, and their employees, under contract or subcontract to or on behalf of the United States Department of Defense. United States contractors are not included as part of the definition of United States personnel in this Agreement, including within the context of the VFA.63 (Emphasis supplied)
This definition admits that the VFA does not provide for the entry of contractors into Philippine territory. The activities that United States contractors are allowed to undertake are specific to United States forces or personnel only as can be gleaned from this court's decisions in Bayan, Lim, and Nicolas. Hence, the extensive authority granted to United States contractors cannot be sourced from the VFA:
Article II
DEFINITIONS
. . . .
4. "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements.
. . . .
Article III
AGREED LOCATIONS
1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refuel big 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.
. . . .
Article IV
EQUIPMENT, SUPPLIES, AND MATERIEL
. . . .
4. United States forces and United States contractors shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel.
5. The Parties share an intent that United States contractors may carry out such matters in accordance with, and to the extent permissible under, United States laws, regulations, and policies. (Emphasis supplied)
Respondents, through the Office of the Solicitor General, insist that the EDCA is an implementing agreement of the Mutual Defense Treaty and the VFA. They do so based on the conclusion that all treaties or agreements entered into by the Philippines pursuant to certain principles contained in the Mutual Defense Treaty may be considered subservient to these treaties. This will substantially weaken the spirit of Article XVIII, Section 25 and the sovereign desire to achieve an independent foreign policy.
X
The EDCA authorizes the use of Philippine territory as bases of operations. Although not as permanent as those set up pursuant to the 1947 Military Bases Agreement, they are still foreign military bases within the contemplation of Article XVIII, Section 25 of the Constitution.
The development and use of these Agreed Locations are clearly within the discretion of the United States. The retention of ownership by the Philippines under Article V(1)64 of the EDCA does not temper the wide latitude accorded to the other contracting party. At best, the United States' only obligation is to consult and coordinate with our government. Under the EDCA, the consent of the Philippine government does not extend to the operations and activities to be conducted by the United States forces and contractors. Operational control remains solely with the United States government. The agreement did not create a distinction between domestic and international operations. Ownership of the Agreed Locations under the EDCA is a diluted concept, with the Philippine government devoid of any authority to set the parameters for what may and may not be conducted within the confines of these areas.
What constitutes a "base" in the context of United States-Philippine relations may be explored by revisiting the 1947 Military Bases Agreement.65 In one of the agreement's preambular clauses, the United States and Philippine governments agreed that in line with cooperation and common defense, the United States shall be granted the use of certain lands of the public domain in the Philippines, free of rent.66 In line with the promotion of mutual security and territorial defense, the extent of rights of the contracting parties in the use of these lands was described in Article III of the agreement:
Article III
Description of rights
1. It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate for their control.
2. Such rights, power and authority shall include, inter alia, the right, power and authority:
a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases;
b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;
c) to control (including the right to prohibit) 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 waterborne craft, aircraft and other vehicles on water, in the air or on land comprising or in the vicinity of the bases;
d) the right to acquire, as may be agreed between the two Governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including sub-marine and subterranean cables, pipe lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the two Governments to construct the necessary facilities;
e) to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.
3. In the exercise of the above-mentioned rights, power and authority, the United States agrees that the powers granted to it will not be used unreasonably or, unless required by military necessity determined by the two Governments, so as to interfere with the necessary rights of navigation, aviation, communication, or land travel within the territories of the Philippines. In the practical application outside the bases of the rights, power and authority granted in this Article there shall be, as the occasion requires, consultation between the two Governments. (Emphasis supplied)
The bases contemplated by the 1947 Military Bases Agreement contain the elements of (a) absolute control of space; (b) the presence of a foreign command; and (c) having a purpose of a military nature. The agreement also relegates the role of the Philippine government to a mere "consultant" in cases of applications falling outside the terms provided in Article III.
The EDCA contains similar elements.
However, the EDCA has an open-ended duration. Despite having an initial term of 10 years, Article XII(4) specifically provides for the automatic continuation of the agreement's effectivity until a party communicates its intent to terminate.67
The purpose of the Agreed Locations is also open-ended. At best, its definition and description of rights provide that the areas shall be for the use of United States forces and contractors. However, short of referring to Agreed Locations as bases, the EDCA enumerates activities that tend to be military in nature, such as bunkering of vessels, pre-positioning of equipment, supplies, and materiel, and deploying forces and materiel.68 The United States is also allowed to undertake the construction of permanent facilities,69 as well as to use utilities and its own telecommunications systems.70
Most significant is the Philippine government's grant to the United States government of operational control over the Agreed Locations:71
Article VI
Security
. . . .
3. United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense, including taking appropriate measures to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.
4. The Parties shall take all reasonable measures to ensure the protection, safety, and security of United States property from seizure by or conversion to the use of any party other than the United States, without the prior written consent of the United States. (Citation omitted)
The United States Department of Defense Dictionary of Military and Associated Terms72 defines "operational control" as:
[O]perational control - The authority to perform those functions of command over subordinate forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction necessary to accomplish the mission. Also called OPCON.
Similar to the 1947 Military Bases Agreement, the role of the Philippine government has been reduced to that of a consultant, except that the EDCA avoided the use of this label.
In some respects, too, the EDCA is similar to the Treaty of Friendship, Cooperation and Security between the Government of the Republic of the Philippines and the Government of the United States of America, which was rejected by the Philippine Senate in 1991. This rejected treaty73 defines installations as:
"Installations" on the base authorized for use by the United States forces are buildings and structures to include non-removable buildings, structures, and equipment therein owned by the Government of the Philippines, grounds, land or sea areas specifically delineated for the purpose. "Non-removable buildings and structures" refer to buildings, structures, and other improvements permanently affixed to the ground, and such equipment, including essential utility systems such as energy and water production and distribution systems and heating and air conditioning systems that are an integral part of such buildings and structures, which are essential to the habitability and general use of such improvements and are permanently attached to or integrated into the property.
The treaty, which was not concurred in by the Senate, sets the parameters for defense cooperation and the use of installations in several provisions:
Article IV
Use of Installations by the US Forces
1. Subject to the provisions of this Agreement, the Government of the Philippines authorizes the Government of the United States to continue to use for military purposes certain installations in Subic Naval Base.
2. The installations shall be used solely for the purposes authorized under this Agreement, and such other purposes as may be mutually agreed upon
3. Ownership of all existing non-removable buildings and structures in Subic Naval Base is with the Government of the Philippines which has title over them. The Government of the Philippines shall also become owner of all non-removable buildings and structures that shall henceforth be constructed in Subic Naval Base immediately after their completion, with title thereto being vested with the Government of the Philippines.
4. The Government of the United States shall not remove, relocate, demolish, reconstruct or undertake major external alterations of non-removable buildings and structures in Subic Naval Base without the approval of the Philippine commander. The United States shall also not construct any removable or non-removable buildings or structures without the approval of the Philippine Commander. The Philippine Commander will grant such approval for reasons of safety as determined jointly by the Philippine and United States Commanders
. . . .
8. The Government of the United States shall bear costs of operations and maintenance of the installations authorized for use in accordance with Annex B to this Agreement.
9. The Government of the Philippines will, upon request, assist the United States authorities in obtaining water, electricity, telephone and other utilities. Such utilities shall be provided to the Government of the United States, United States contractors and United States personnel for activities under this Agreement at the rates, terms and conditions not less favorable than those available to the military forces of the Philippine government, and free of duties, taxes, and other charges.
. . . .
Article VII
Defense Cooperation and Use of Philippine Installations
1. Recognizing that cooperation in the areas of defense and security serves their mutual interest and contributes to the maintenance of peace, and reaffirming their existing defense relationship, the two Governments shall pursue their common concerns in defense and security.
2. The two Governments recognize the need to readjust their defense and security relationship to respond to existing realities in the national, regional, and global environment. To this end, the Government of the Republic of the Philippines allows the Government of the United States to use installations in Subic Naval Base for a specified period, under specific conditions set forth in Supplementary Agreement Number Two: Agreement on Installations and Military Operating Procedures and Supplementary Agreement Number Three: Agreement on the Status of Forces.
3. Both governments shall also cooperate in the maintenance, upgrading and modernization of the defense and security capabilities of the armed forces of both countries, particularly of those of the Republic of the Philippines. In accordance with the common desire of the Parties to improve their defense relationship through balanced, mutual contributions to their common defense, the Government of the United States shall, subject to the constitutional procedures and to United States Congressional action, provide security assistance to the Government of the Philippines to assist in the modernization and enhancement of the capabilities of the Armed Forces of the Philippines and to support appropriate economic programs.
The 1987 Constitution does not proscribe the establishment of permanent or temporary foreign military bases. However, the Constitution now requires that decisions on the presence of foreign military bases, troops, and facilities be not the sole prerogative of the President and certainly not the prerogative at all of the Secretary of Defense or Philippine Representatives to the Mutual Defense Board and the Security Enhancement Board.
Absent any transmission by the President to the Senate, the EDCA remains a formal official memorial of the results of intensive negotiations only. It has no legal effect whatsoever, and any implementation at this stage will be grave abuse of discretion.
XI
Thus, the EDCA amends the VFA. Since the VFA is a treaty, the EDCA cannot be implemented.
Treaties, being of the same status as that of municipal law, may be modified either by another statute or by the Constitution itself.74 Treaties such as the VFA cannot be amended by an executive agreement.
XII
Petitioners invoke this court's power of judicial review to determine whether respondents from the Executive Branch exceeded their powers and prerogatives in entering into this agreement on behalf of the Philippines "in utter disregard of the national sovereignty, territorial integrity and national interest provision of the Constitution, Section 25 of the Transitory provisions of the Constitution, Section 21 and other provisions of the Philippine Constitution and various Philippine laws and principles of international law."75
Petitioners submit that all requisites for this court to exercise its power of judicial review are present.76 Petitioners in G.R. No. 212444 discussed that they had legal standing and they raised justiciable issues. Petitioners in G.R. No. 212426 similarly discussed their legal standing, the existence of an actual case or controversy involving a conflict of legal rights, and the ripeness of the case for adjudication.77
Respondents counter that only the Senate may sue on matters involving constitutional prerogatives, and none of the petitioners are Senators.78 They submit that "[t]he silence and active non-participation of the Senate in the current proceedings is an affirmation of the President's characterization of the EDCA as an executive agreement,"79 and "there is no such actual conflict between the Executive and the Senate."80 They add that the overuse of the transcendental importance exception "has cheapened the value of the Constitution's safeguards to adjudication."81
Article VIII, Section 1 of the Constitution now clarifies the extent of this court's power of judicial review "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. "82
The 1936 landmark case of Angara v. Electoral Commission83 explained the fundamental principle of separation of powers among government branches and this court's duty to mediate in the allocation of their constitutional boundaries:
In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.
. . . The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any living constitution ....
The Constitution is a definition of the powers of government. . . The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the governments of the government.84
Jurisprudence abounds on these four requisites for the exercise of judicial review. It must be shown that an actual case or controversy exists; that petitioners have legal standing; that they raised the constitutionality question at the earliest possible opportunity; and that the constitutionality question is the very lis mo ta of the case.85
This court can only exercise its power of judicial review after determining the presence of all requisites, such as an actual case or controversy, in consideration of the doctrine of separation of powers. It cannot issue advisory opinions nor overstep into the review of the policy behind actions by the two other co-equal branches of government. It cannot assume jurisdiction over political questions.
XIII
The requirement for an actual case or controversy acknowledges that courts should refrain from rendering advisory opinions concerning actions by the other branches of government.86
Courts resolve issues resulting from adversarial positions based on existing facts established by the parties who seek the court's application or interpretation of a legal provision that affects them.87 It is not for this court to trigger or re-enact the political debates that resulted in the enactment of laws after considering broadly construed factual circumstances to allow a general application by the Executive.88
The requisite actual case or controversy means the existence of "a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice."89 It means the pleadings show "an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue."90
Thus, it is not this court's duty to "rule on abstract and speculative issues barren of actual facts."91 Ruling on abstract cases presents the danger of foreclosing litigation between real parties, and rendering advisory opinions presents the danger of a court that substitutes its own imagination and predicts facts, acts, or events that may or may not happen.92 Facts based on judicial proof must frame the court's discretion,93 as "[r]igor in determining whether controversies brought before us are justiciable avoids the counter majoritarian difficulties attributed to the judiciary."94
Abstract cases include those where another political department has yet to act. In other words, a case not ripe for adjudication is not yet a concrete case.
Republic of the Philippines v. Roque95 clarified the concept of having an actual case or controversy and the aspect of ripeness:
Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by "ripening seeds" it is meant, not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled and stabilized by tranquilizing declaration.
A perusal of private respondents' petition for declaratory relief would show that they have failed to demonstrate how they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the assailed provisions of RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases, private respondents only assert general interests as citizens, and taxpayers and infractions which the government could prospectively commit if the enforcement of the said law would remain untrammelled. As their petition would disclose, private respondents' fear of prosecution was solely based on remarks of certain government officials which were addressed to the general public. They, however failed to show how these remarks tended towards any prosecutorial or governmental action geared towards the implementation of RA 9372 against them. In other words, there was no particular, real or imminent threat to any of them As held in Southern Hemisphere:
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency" where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 93 72 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 93 72 since the exercise of any power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.96 (Emphasis supplied, citations omitted)
Our courts generally treat the issue of ripeness for adjudication in terms of actual injury to the plaintiff.97 The question is whether "the act being challenged has had a direct adverse effect on the individual challenging it."98 The Petitions are premature. Since the Senate has yet to act and the President has yet to transmit to the Senate, there is no right that has been violated as yet.
XIV
There is still a political act that must happen before the agreement can become valid and binding. The Senate can still address the constitutional challenges with respect to the contents of the EDCA. Thus, the challenges to the substantive content of the EDCA are, at present, in the nature of political questions.
However, the nature of the EDCA, whether it is a treaty or merely an executive agreement, is ripe for adjudication.
In 1957, Tañada v. Cuenca99 explained the concept of political questions as referring to issues that depend not on the legality of a measure but on the wisdom behind it:
As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is political or not. In this connection, Willoughby lucidly states:
"Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.
As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts."
To the same effect is the language used in Corpus Juris Secundum, from which we quote:
"It is well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred upon the courts by express constitutional or statutory provisions.
"It is not easy, however, to define the phrase 'political question', nor to determine what matters fall within its scope. It is frequently used to designate all questions that the outside the scope of the judicial questions, which under the constitution, are to be decided by the people in their sovereign capacity, or in regard to whichfull discretionary authority has been delegated to the legislative or executive branch of the government."
Thus, it has been repeatedly held that the question whether certain amendments to the Constitution are invalid for non-compliance with the procedure therein prescribed, is not a political one and may be settled by the Courts.
In the case of In re McConaughy, the nature of political question was considered carefully. The Court said:
"At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem, to be finally settled.
. . . .
. . . What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated-to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to 'the end that the government may be one of laws and not men'-words which Webster said were the greatest contained in any written constitutional document."
In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus JurisSecundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. "It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.100 (Emphasis supplied, citations omitted)
Francisco v. House of Representatives101 involved the second impeachment Complaint filed against former Chief Justice Hilario Davide before the House of Representatives and raised the issue of whether this raised a political question. It traced the evolution of jurisprudence on the political question doctrine and the effect of this court's expanded power of judicial review under the present Constitution on this doctrine:
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution.
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide ....
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, (t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction todelimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question ....
. . . .
In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits[.]102 (Emphasis supplied)
In Diocese of Bacolod v. COMELEC,103 this court held that the political question doctrine never precludes this court's exercise of its power of judicial review when the act of a constitutional body infringes upon a fundamental individual or collective right.104 However, this will only be true if there is no other constitutional body to whom the discretion to make inquiry is preliminarily granted by the sovereign.
Ruling on the challenge to the content of the EDCA will preclude and interfere with any future action on the part of the Senate as it inquires into and deliberates as to whether it should give its concurrence to the agreement or whether it should advise the President to reopen negotiations to amend some of its provisions. It is the Senate, through Article VII, Section 21 in relation to Article XVIII, Section 25, that was given the discretion to make this initial inquiry exclusive of all other constitutional bodies, including this court. A policy of deference and respect for the allocation of such power by the sovereign to a legislative chamber requires that we refrain from making clear and categorical rulings on the constitutional challenges to the content of the EDCA.
XV
It is true that we have, on certain occasions, substantially overridden the requirements of justiciability when there is an imminent threat to the violation of constitutional rights. In Garcia v. Drilon,105 I stated that:
I am aware of our precedents where this Court has waived questions relating to the justiciability of the constitutional issues raised when they have "transcendental importance" to the public. In my view, this accommodates our power to promulgate guidance "concerning the protection and enforcement of constitutional rights." We choose to rule squarely on the constitutional issues in a petition wanting all or some of the technical requisites to meet out general doctrines on justiciability but raising clear conditions showing imminent threat to fundamental rights. The imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. In a sense, our exceptional doctrine relating to constitutional issues of "transcendental importance" prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial protection.106 (Emphasis supplied, citations omitted)
There is, however, no need to invoke these exceptions. The imminence of the implementation of the EDCA and, therefore, the clarity of the impending threat to constitutional rights do not appear cogent if we declare that the EDCA, without Senate concurrence, is not yet valid and binding as a treaty or fully complying with the requirements of Article XVIII, Section 25.
XVI
The proposed disposition of this case does not in any way discount the deployment of the expertise of the Executive as it conducts foreign policy. Nor should we arrogate executive discretion by compelling the President to transmit the agreement to the Senate for concurrence.107
Nevertheless, the judiciary has the duty to ensure that the acts of all branches of iovernment comply with the fundamental nature of the Constitution.108 While the EDCA is a formal and official memorial of the results of negotiations between the Philippines and the United States, it is not yet effective until the Senate concurs or there is compliance with Congressional action to submit the agreement to a national referendum in accordance with Article XVIII, Section 25 of the Constitution.
It is, thus, now up to the President. Should he desire to continue the policy embedded in the EDCA, with deliberate dispatch he can certainly transmit the agreement to the Senate for the latter to initiate the process to concur with the agreement. After all, on these matters, the sovereign, speaking through the Constitution, has assumed that the exercise of wisdom is not within the sole domain of the President. Wisdom, in allowing foreign military bases, troops, or facilities, is likewise within the province of nationally elected Senators of the Republic.
On these matters, the Constitution rightly assumes that no one person-because of the exigencies and their consequences-has a monopoly of wisdom.
In my view, the same security concerns that moved the President with haste to ratify the EDCA signed by his Secretary of Defense will be the same security concerns-and more-that will move the Senate to consider the agreement with dispatch. There are matters of national consequence where the views of an elected President can be enriched by the views of an elected Senate. Certainly, the participation of the public through these mechanisms is as critical as the foreign policy directions that the EDCA frames.
By abbreviating the constitutional process, this court makes itself vulnerable to a reasonable impression that we do not have the courage to enforce every word, phrase, and punctuation in the Constitution promulgated by our People. We will stand weak, as an institution and by implication as a state, in the community of nations. In clear unequivocal words, the basic instrument through which we exist requires that we interpret its words to make real an independent foreign policy. It requires measures be fully publicly discussed before any foreign resource capable of making war with our neighbors and at the command of a foreign sovereign-foreign military bases, troops and facilities-becomes effective.
Instead, the majority succumbed to a narrative of dependence to a superpower.
Our collective memories are perilously short. Our sense of history is wanting.
The Americans did not recognize the Declaration of Independence of 1898, which was made possible by the blood of our ancestors. They ignored their agreements with the Filipino revolutionaries when they entered Intramuros and staged the surrender of the Spanish colonizers to them. They ignored our politicians when they negotiated the Treaty of Paris. Not a single Filipino was there--not even as an observer. They triggered armed conflict with the Filipino revolutionaries. The schools they put up attempted to block out the inhumanity and barbarism in the conflict that followed. Only a few remember the massacres of Samar, of Bud Dajo, and of other places in our country. In the memory of many Filipinos today, these brutalities have been practically erased.
Filipino veterans of World War II who fought gallantly with the Americans, now gray and ailing, still await equal treatment with United States war veterans. Filipina comfort women of that war still seek just treatment and receive no succor from the ally with and for whom they bled and suffered.
The 1951 Mutual Defense Treaty and the Visiting Forces Agreement was in effect when the Chinese invaded certain features within our Exclusive Economic Zone in the West Philippine Sea. The Americans did not come to our aid. The President of the United States visited and, on the occasion of that visit, our own President announced the completion of the EDCA. No clear, unequivocal, and binding commitment was given with respect to the applicability of the Mutual Defense Treaty to the entirety of our valid legal claims in the West Philippine Sea. The commitment of the United States remains ambiguous. The United States' statement is that it will not interfere in those types of differences we have with China, among others.
The inequality of the Mutual Defense Treaty is best presented by the image of a commissioned but rusting and dilapidated warship beached in a shoal in the West Philippine Sea. This ship is manned by a handful of gallant heroic marines, and by the provisions of the Mutual Defense Treaty, an attack on this ship-as a public vessel-is what we are relying upon to trigger mutual defense with the United States.
We remain a permanent ally of the United States. For decades, we relied on them for the training of our troops and the provision of military materiel. For decades, we hosted their bases. Yet, our armed forces remain woefully equipped. Unlike in many of their other allies, no modem US-made fighter jet exists in our Air Force. We have no credible missile defense. Our Navy's most powerful assets now include a destroyer that was decommissioned by the United States Coast Guard.
It is now suggested that these will change with the EDCA. It is now suggested that this court should act to make that change possible. Impliedly, it is thus also suggested that the Senate, or Congress, or the People in a referendum as provided in our Constitution, will be less patriotic than this court or the President.
There has never been a time in our history-and will never be a time m the future-when the national interest of the United States was subservient to ours. We cannot stake our future on how we imagine the United States will behave in the future. We should learn from our history. If we wish the United States to behave in a way that we expect, then our government should demand clear commitments for assistance to our primary interests. The likelihood that this will happen increases when agreements with them run through the gauntlet of public opinion before they become effective.
Certainly, this is what the Constitution provides. Certainly, this is the least that we should guarantee as a court of law.
FINAL NOTE
In 1991, there was the "Senate that Said No" to the extension of the stay of military bases of the United States within Philippine territory. That historical decision defined the patriotism implicit in our sovereignty. That single collective act of courage was supposed to usher opportunities to achieve the vision of our Constitution for a more meaningful but equal relationship with the American empire. That act was the pinnacle of decades of people's struggles.
History will now record that in 2016, it is this Supreme Court that said yes to the EDCA. This decision now darkens the colors of what is left of our sovereignty as defined in our Constitution. The majority's take is the aftermath of squandered opportunity. We surrender to the dual narrative of expediency and a hegemonic view of the world from the eyes of a single superpower. The opinion of the majority of this Supreme Court affirms executive privileges and definitively precludes Senate and/or Congressional oversight in the crafting of the most important policies in our relations with the United States and, implicitly, its enemies and its allies. In its hurry to abbreviate the constitutional process, the majority also excludes the possibility that our people directly participate in a referendum called to affirm the EDCA.
Article XVIII, Section 25 does not sanction the surreptitious executive approval of the entry of United States military bases or any of its euphemisms (i.e., "Agreed Locations") through strained and acrobatic implication from an ambiguous and completely different treaty provision.
The majority succeeds in emasculating our Constitution. Effectively, this court erases the blood, sweat, and tears shed by our martyrs.
I register more than my disagreement. I mourn that this court has allowed this government to acquiesce into collective subservience to the Executive power contrary to the spirit of our basic law.
I dissent.
ACCORDINGLY, I vote to PARTIALLY GRANT the Petitions and to DECLARE the Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the Philippines and the United States of America as a formal and official memorial of the results of the negotiations concerning the allowance of United States military bases, troops, or facilities in the Philippines, which is NOT EFFECTIVE until it complies with the requisites of Article XVIII, Section 25 of the 1987 Philippine Constitution, namely: (1) that the agreement must be in the form of a treaty; (2) that the treaty must be duly concurred in by the Philippine Senate and, when so required by Congress, ratified by a majority of votes cast by the people in a national referendum; and (3) that the agreement is either (a) recognized as a treaty or (b) accepted or acknowledged as a treaty by the United States before it becomes valid, binding, and effective.
MARVIC M.V.F. LEONEN
Associate Justice
Footnotes
1 Heneral Luna, Dir. Jerrold Tarog Artikulo Uno Productions (2015). The inclusion of this quote is to emphasize its metaphor and not meant in any way to denigrate the human dignity of commercial sex workers.
2 Bayan v. Zamora, 396 Phil. 623 (2000) [Per J. Buena, En Banc].
3 Id. at 632-637.
4 Id. at 654-657.
5 430 Phil. 555 (2002) [Per J. De Leon, Jr., En Banc].
6 Id. at 575-576. "Nemo palest facere per alium quad non palest facere per directum" translates to "No one is allowed to do indirectly what he is prohibited to do directly."
7 598 Phil. 262 (2009) [Per J. Azcuna, En Banc].
8 Id. at 284-285.
9 Charter of United Nations, Chapter I, art. 2(4) <http://www.un.org/en/documents/charter/chapterl.shtml> (visited January 11, 2016).
10 Charter of United Nations, Chapter VII, art. 51 <http://www.un.org/en/documents/charter/chapter7.shtml> (visited January 11, 2016). See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), I.CJ. 1984 I.C.J. 39
11 See Anthony Clark Arend, International Law and the Preemptive Use of Military Force, THE WASHINGTON QUARTERLY 26:2, 89-103 (2003). See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND How WE USE IT 242-243 (1994), citing US Secretary of State Webster in his diplomatic note in the 1842 Caroline Case. According to Professor Higgins, under customary international law, pre-emptive self-defense may be resorted to when the necessity is "instant, overwhelming, and leav[es] no choice of means, and no moment for deliberation."
12 See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND How WE USE IT 245-248 (1994). See Keynote address by Jacques Forster, Vice President of the International Committee of the Red Cross, presented at the Ninth Annual Seminar on International Humanitarian Law for Diplomats accredited to the United Nations, Geneva, 8-9 March 2000 <https://www.icrc.org/eng/resources/documents/misc/57jqjk.htm> (visited January 11, 2016): "The use of force by the international community should come within the scope of the United Nations Charter. International humanitarian law cannot be invoked to justify armed intervention because it has nothing to do with the right of States to use force. Its role is strictly limited to setting limits to armed force irrespective of the legitimacy of its use." See also United Nations Security Council Resolution 1674 (2006) on the concept of Responsibility to Protect <http://www.un.org/en/ga/search/view doc.asp?symbol=S/RES/1674(2006)> (visited January 11, 2016).
13 Charter of United Nations, Chapter VII, art. 42 <http://www.un.org/en/sections/charter/chapter7.shtml> (visited January 11, 2016).
14 See Charter of United Nations, Chapter VII, art. 44 <http://www.un.org/en/documents/charter/chapter7.shtml> (visited January 11, 2016). See also Enforcement action through regional arrangements under Articles 52 (I) and 53 (I) of the United Nations Charter. <http://www.un.org/en/sections/un-charter/chapter-viii/index.html> (visited January 11,2016).
15 CONST., art. VII, sec. I.
16 CONST., art. VII, sec.17.
17 Bayan v. Zamora, 396 Phil. 623, 663 (2000) [Per J. Buena, En Banc].
18 CONST., art. VII, sec.18.
19 CONST., art. VII, sec.18.
20 Bayan v. Zamora, 396 Phil. 623, 651--655 (2000) [Per J. Buena, En Banc].
21 Id. at 653--655.
22 Ponencia, pp. 26--27.
23 Id. at 28.
24 Thomas Waldman, Politics and War: Clausewitz's Paradoxical Equation, AUTUMN 2 (2010) <http://strategicstudiesinstitute.army.mil/pubs/parameters/ Articles/201 Oautumn/Waldman. pdf> (visited January 11, 2016).
25 J. Puno, Dissenting Opinion in Bayan v. Zamora, 396 Phil. 623, 672-675 (2000) [Per J. Buena, En Banc].
26 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014 ), Art. 1, sec. 1.
27 See Vienna Convention on the Law of Treaties (1969), art. 2(l)(a) and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, art. 2(l)(a) (1986).
28 See Bayan v. Zamora, 396 Phil. 623 (2000) [Per J. Buena, En Banc]; and Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303 (2005) [Per J. Puno, En Banc]. See also Exec. Order No. 292 (1987), Book IV, Title I, sec. 3(1) and 20.
29 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961) [Per J. Concepcion, En Banc].
30 Id.
31 Id. at 338.
32 MERLIN M. MAGALLON A, A PRIMER IN INTERN A TI ON AL LAW 62-64 (1997).
33 Article 2. USE OF TERMS
. . . .
2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.
34 1. For the purposes of the present Convention:
(a) "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
35 See Merlin M. Magallona, The Supreme Court and International Law: Problems and Approaches in Philippine Practice, in INTERNATIONAL RELATIONS PAMPHLET SERIES NO. 12, 16-17 (2010).
36 See 1 OLIVIER CORTIEN AND PIERRE KLEIN, THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 34 and 55 (2011).
37 MERLIN M. MAGALLON A, A PRIMER IN INTERNATIONAL LAW 66-67 (1997).
38 Article 62. Fundamental Change of Circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treary unless:
a. The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
b. The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty;
a. If the treaty establishes a boundary; or
b. If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
Vienna Convention of the Law of Treaties (1969) <https://treaties.un.org/doc/Publication/UNTSNolume%201155/volume-l l 55-I- l 8232-English.pdt> (visited January 11, 2016).
39 Vienna Convention of the Law of Treaties, art. 62 (1969) <https://treaties.un.org/doc/Publication/UNTSN olume%201155/volume-1155-1-18232-English.pdt> (visited January 11, 2016).
40 Merlin M. Magallona, A Critical Review of the EDCA 29 (2014) (Unpublished), annexed to petitioners' Memorandum.
41 J. Puno, Dissenting Opinion in Bayan v. Zamora, 396 Phil. 623, 672--673 (2000) [Per J. Buena, En Banc].
42 128 S.Ct. 1346; 170 L.Ed.2d 190.
43 J. Carpio, Dissenting Opinion in Nicolas v. Romulo, 598 Phil. 262, 308-312 (2009) [Per J. Azcuna, En Banc].
44 Respondents' Memorandum, pp. 15-16.
45 ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations, Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
46 ARTICLE II. In order more effectively to achieve the objective of this 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.
47 Respondents' Memorandum, p. 15.
48 Id. at 16.
49 Id., citing Agreement between the Government Republic of the Philippines and the Government of the United States of America Regarding the Treatment of United States Armed Forces Visiting the Philippines (1998), art. I, VII, and VIII.
50 (b) Authorizing access to Agreed Locations in the territory of the Philippines by United States forces on a rotational basis, as mutually determined by the Parties.
51 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. VI(3). United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense, including taking appropriate measures to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.
52 Mutual Defense Treaty between the Republic of the Philippines and the United States of America (1951), Preamble, par. 4.
53 Nicolas v. Romulo, 598 Phil. 262, 284 (2009) (Per J. Azcuna, En Banc].
54 See CONST., art. XVIII, sec. 25.
55 The Terms of Reference provides:
I. POLICY LEVEL
1. The Exercise shall be Consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VFA. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials.
56 Lim v. Executive Secretary, 430 Phil. 555 (2002) [Per J. De Leon, Jr., En Banc].
57 Id. at 564.
58 Manyin, Mark E., Pivot to the Pacific? The Obama Administration's "Rebalancing" Toward Asia (2012) <https://www.fas.org/sgp/crs/natsec/R42448.pdt> (visited January 11, 2016). See Jonathan G. Odom, What Does a "Pivot" or "Rebalance" Look Like? Elements of the US. Strategic Turn Towards Security in the Asia-Pacific Region and Its Waters, 14 APLPJ 2-8 (2013); Ronald O'Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, (2015) <https://www.fas.org/sgp/crs/row/R42784.pdf> (visited January 11, 2016).
59 United States Department of Defense, The Asia-Pacific Maritime Security Strategy: Achieving US. National Security Objectives in a Changing Environment, (1-2) <http://www.defense.gov/Portals/l/Documents/pubs/NDAA %20A-P Maritime_ SecuritY Strategy-08142015-1300-FINALFORMAT.PDF (visited January 11, 2016).
60 Id. at 1.
61 Id. at 23-24.
62 Id. at 22-23.
63 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. II (3).
64 "The Philippines shall retain ownership of and title to Agreed Locations."
65 A copy is contained in Treaties and Other International Agreements of the United States of America 1776-1949, as compiled under the direction of Charles I. Bevans, LL.B., Assistant Legal Adviser, Department of State <http://kahimyang.info/kauswagan/Downloads.xhtml?sortorder=znoblair> (visited November 5, 2015).
66 WHEREAS, the Governments of the United States of America and of the Republic of the Philippines are desirous of cooperating in the common defense of their two countries through arrangements consonant with the procedures and objectives of the United Nations, and particularly through a grant to the United States of America by the Republic of the Philippines in the exercise of its title and sovereignty, of the use, free of rent, in furtherance of the mutual interest of both countries, of certain lands of the public domain;
67 4. This Agreement shall have an initial term of ten years, and thereafter, it shall continue in force automatically unless terminated by either Party by giving one year's written notice through diplomatic channels of its intention to terminate this Agreement.
68 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. III(1).
69 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. V (4) provides: All buildings, non-relocatable structures, and assemblies affixed to the land, in the Agreed Locations, including ones altered or improved by United States forces, remain the property of the Philippines. Permanent buildings constructed by United States forces become the property of the Philippines, once constructed, but shall be used by United States forces until no longer required by United States forces.
70 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. VII provides for the use of utilities and communication systems:
1. The Philippines hereby grants to United States forces and United States contractors the use of water, electricity, and other public utilities on terms and conditions, including rates or charges, no less favorable than those available to the AFP or the Government of the Philippines in like circumstances, less charges for taxes and similar fees, which will be for the account of the Philippine Government. United States forces' costs shall be equal to their pro rata share of the use of such utilities.;
2. The Parties recognize that it may be necessary for United States forces to use the radio spectrum. The Philippines authorizes the United States to operate its own telecommunication systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union ("ITU")). This shall include the right to utilize such means and services as required to ensure the full ability to operate telecommunication systems, and the right to use all necessary radio spectrum allocated for this purpose. Consistent with the 1992 Constitution and Convention of the ITU, United States forces shall not interfere with frequencies in use by local operators. Use of the radio spectrum shall be free of cost to the United States.
71 Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. III (4).
72 November 8, 2010, As Amended Through June 15, 2015 <http://fas.org/irp/doddir/dod/jpl_02.pdf> (visited November 5, 2015):
1. Scope
The Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms sets forth standard US military and associated terminology to encompass the joint activity of the Armed Forces of the United States. These military and associated terms, together with their definitions, constitute approved Department of Defense (DOD) terminology for general use by all DOD components.
2. Purpose
This publication supplements standard English-language dictionaries and standardizes military and associated terminology to improve communication and mutual understanding within DOD, with other federal agencies, and among the United States and its allies.
73 This treaty contains a Supplementary Agreement on Installations and Military operating Procedures (Supplementary Agreement Number Two), which provides:
ARTICLE 1
PURPOSES OF THE UNITED STATES MILITARY PRESENCE IN THE PHILIPPINES
The Government of the Republic of the Philippines authorizes the Government of the United States of America to station United States forces in the Philippines, and in connection therewith to use certain installations in Subic Naval Base, which is a Philippine military base, designated training areas and air spaces, and such other areas as may be mutually agreed, for the following purposes and under the terms and conditions stipulated in this Agreement:
a. training of United States forces and joint training of United States forces with Philippine forces;
b. servicing. provisioning, maintenance, support and accommodation of United States forces;
c. logistics supply and maintenance points for support of United States forces;
d. transit point for United States forces and United States military personnel;
e. projecting or operating United States forces from the installations under conditions of peace or war, provided that military combat operations of United States forces directly launched from installations on the base authorized for United States use shall be subject to prior approval of the Government of the Philippines;
f. such other purposes, consistent with this Agreement, as may be mutually agreed.
74 See Gonzales v. Hechanova, 118 Phil. 1065 (1963) [Per J. Concepcion, En Banc] and Jchong v. Hernandez, 101 Phil. 1155 (1957) [Per J. Labrador, En Banc].
75 Memorandum for Petitioners Bayan, et al., pp. 3-4.
76 Memorandum for Petitioners Bayan, et al., pp. 19-25; Memorandum for Petitioners Saguisag, pp.11-17; Memorandum for Petitioners-in-Intervention KMU, pp. 5-6.
77 Memorandum for Petitioners Saguisag, pp.11-17.
78 Memorandum for Respondents, pp. 4-5.
79 Id. at 6.
80 Id. at 7.
81 Id. at 8.
82 CONST., art. VIII, sec. 1.
83 63 Phil. 139 (1936) [Per J. Laurel, En Banc].
84 Id. at 157-159 (1936) [Per J. Laurel, En Banc].
85 See Francisco, Jr. v. House of Representatives, 460 Phil. 830, 892 (2003) [Per J. Carpio-Morales, En Banc].
86 Lozano v. Nograles, 607 Phil. 334, 340 (2009) [Per C.J. Puno, En Banc]. See also J. Leanen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 535 [Per J. Abad, En Banc].
87 Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov. ph/pdf/web/viewer.html?file=/jurisprudence/2015/j anuary2015/205728.pdt> [Per J. Leonen, En Banc].
88 Id.
89 Information Technology Foundation of the Philippines v. COMELEC, 499 Phil. 281, 304 (2005) [Per J. Panganiban, En Banc], citing Republic v. Tan, G.R. No. 145255, 426 SCRA 485, March 30, 2004 [Per J. Carpio-Morales, Third Division]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 534 [Per J. Abad, En Banc]; and Jn the Matter of Save the Supreme Court Judicial Independence and Fiscal Autonomy Movement v. Abolition of Judiciary Development Fund (JDF) and Reduction of Fiscal Autonomy, UDK-15143, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l5/january2015115143.pdt> [Per J. Leonen, En Banc].
90 Information Technology Foundation of the Philippines v. COMELEC, 499 Phil. 281, 305 (2005) [Per J. Panganiban, En Banc], citing Vide: De Lumen v. Republic, 50 OG No. 2, February 14, 1952, 578. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335,February 18, 2014, 716 SCRA 237, 534-535 [Per J. Abad, En Banc]; and Jn the Matter of Save the Supreme Court Judicial Independence and Fiscal Autonomy Movement v. Abolition of Judiciary Development Fund (JDF) and Reduction of Fiscal Autonomy, UDK-15143, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20I5/january2015115143.pdt> [Per J. Leonen, En Banc].
91 J. Leonen, Dissenting Opinion in lmbong v. Ochoa, G.R. Nos. 204819, April 8, 2014, 721 SCRA 146, 731 [Per J. Mendoza, En Banc], citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc]; and Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429 (1998) [Per J. Panganiban, First Division].
92 Id.
93 Id.
94 Id. at 721.
95 G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J. Perlas-Bernabe, En Banc].
96 Republic of the Philippines v. Roque, G.R. No. 204603, September 24, 2013, 706 SCRA 273, 284-285 [Per J. Perlas-Bernabe, En Banc]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 536-537 [Per J. Abad, En Banc].
97 Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management, 686 Phil. 357 [Per J. Mendoza, En Banc].
98 Id. at 369, citing Lozano v. Nograles, 607 Phil. 334 (2009) [Per C.J. Puno, En Banc], in turn citing Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 [Per J. Panganiban, First Division].
99 103 Phil. 1051 (1957) [Per J. Concepcion, En Banc].
100 Id. at 1065-1067.
101 460 Phil. 830 (2003) [Per J. Carpio-Morales, En Banc].
102 Id. at 910-912 (2003) [Per J. Carpio-Morales, En Banc]. See also Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov. ph/pdf/web/viewer.html?file=/jurisprudence/20l5/january2015/205728. pdf> [Per J. Leonen, En Banc].
103 G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728. pdf> [Per J. Leonen, En Banc].
104 Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov. ph/pdf/web/viewer .html?file=/j urisprudence/2015/j anuary2015/205 728. pdf> [Per J. Leonen, En Banc].
105 J. Leonen, Concurring Opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352 [Per J. Perlas-Bernabe, En Banc].
106 Id. at 493.
107 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303 (2005) [Per J. Puno, En Banc].
108 CONST., art. VIII, sec. 1 and 5(2).
The Lawphil Project - Arellano Law Foundation
CONCURRING AND DISSENTING OPINION
LEONARDO-DE CASTRO, J.:
"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." x x x.1
I concur with the disposition of the procedural issues but not with the arguments and conclusions reached as to the substantive issues.
The focus of the present controversy, as mentioned by the Honorable Chief Justice is the application of Section 25, Article XVIII of the Constitution which reads:
ARTICLE XVIII
TRANSITORY PROVISIONS
SEC. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and 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 25, Article XVIII bans foreign military bases, troops, or facilities in Philippine territory, unless the following requisites are complied with: (1) the presence of foreign military bases, troops, or facilities should be allowed by a treaty; (2) the treaty must be duly concurred in by the Philippine Senate and, when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.2
Couched in negative terms, Section 25, Article XVIII embodies a prohibition: "foreign military bases, troops, or facilities shall not be allowed in the Philippines," unless the requisites in the said section·are met.
In BAYAN v. Zamora,3 the Court held that Section 25, Article XVIII covers three different situations: a treaty allowing the presence within the Philippines of (a) foreign military bases, or (b) foreign military troops, or (c) foreign military facilities, such that a treaty that involves any of these three standing alone falls within the coverage of the said provision.
BAYAN v. Zamora likewise expounded on the coverage of the two provisions of the Constitution - Section 21, Article VII and Section 25, Article XVIII - which both require Senate concurrence in treaties and international agreements. The Court stated:
Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.
x x x x
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient" and "permanent." Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermeneutics that when no distinction is made by law the Court should not distinguish - Ubi lex non distinguit nee nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers ''foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to ''foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration, such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the, government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything.4 (Citations omitted.)
Furthermore, the wording of Section 25, Article XVIII also provides an indubitable implication: foreign military bases, troops and facilities have ceased to be allowed in the Philippines after the expiration in 1991 of the Military Bases Agreement; thereafter, the same can only be re-allowed upon the satisfaction of all the three requirements set forth in the Section 25, Article XVIII.
The legal consequence of the above provision with respect to the Military Bases Agreement (March 14, 194 7), the Mutual Defense Treaty (August 30, 1951), the Visiting Forces Agreement (February 10, 1998), and the Enhanced Defense Cooperation Agreement ([EDCA] April 28, 2014) can be appreciated by an examination of the respective rights and obligations of the parties in these agreements.
Effect of Section 25, Article XVIII of the Constitution on the Military Bases Agreement, the Mutual Defense Treaty, the Visiting Forces Agreement, and the Enhanced Defense Cooperation Agreement
On July 4, 1946, the United States recognized the independence of the Republic of the Philippines, thereby apparently relinquishing any claim of sovereignty thereto. However, on March 14, 1947, the Philippines and the United States entered into a Military Bases Agreement (MBA) which granted to the United States government the right to retain5 the use of the bases listed in the Annexes of said agreement.6 Within said bases, the United States was granted "the rights, power and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate for their control."7 The term of the original agreement was "for a period of ninety-nine years subject to extension thereafter as agreed by the two Governments."8 In 1966, the parties entered into the Ramos-Rusk Agreement, which reduced the term of the Military Bases Agreement to 25 years from 1966, or until 1991.
On August 30, 1951, the Philippines and the United States entered into the Mutual Defense Treaty (MDT), whereby the parties recognized that "an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional process. "9 The treaty provided that it "shall remain in force indefinitely," although either party "may terminate it one year after notice has been given to the other Party."10 It bears pointing out that there is no explicit provision in the MDT which authorized the presence in the Philippines of military bases, troops, or facilities of the United States.
In 1986, during the early stages of the deliberations of the Constitutional Commission, and in view of the impending expiration of the MBA in 1991, the members of the Commission expressed their concern that the continued presence of foreign military bases in the country would amount to a derogation of national sovereignty. The pertinent portion of the deliberations leading to the adoption of the present Section 25, Article XVIII is quoted as follows:
FR. BERNAS. My question is: Is it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?
MR. AZCUNA. It is difficult to imagine a situation based on existing facts where it would not. However, in the abstract, it is possible that it would not be that much of a derogation. I have in mind, Madam President, the argument that has been presented. Is that the reason why there are U.S. bases in England, in Spain and in Turkey? And it is not being claimed that their sovereignty is being derogated. Our situation is different from theirs because we did not lease or rent these bases to the U.S. The U.S. retained them from us as a colonial power.
FR. BERNAS. So, the second sentence, Madam President, has specific reference to what obtains now.
MR. AZCUNA. Yes. It is really determined by the present situation.
FR. BERNAS. Does the first sentence tolerate a situation radically different from what obtains now? In other words, if we understand sovereignty as auto-limitation, as a people's power to give up certain goods in order to obtain something which may be more valuable, would it be possible under this first sentence for the nation to negotiate some kind of a treaty agreement that would not derogate against sovereignty?
MR. AZCUNA. Yes. For example, Madam President, if it is negotiated on a basis of true sovereign equality, such as a mutual ASEAN defense agreement wherein an ASEAN force is created and this ASEAN force is a foreign military force and may have a basis in the member ASEAN countries, this kind of a situation, I think, would not derogate from sovereignty.
MR. NOLLEDO. Madam President, may I be permitted to make a comment on that beautiful question. I think there will be no derogation of sovereignty if the existence of the military bases as stated by Commissioner Azcuna is on the basis of a treaty which was not only ratified by the appropriate body, like the Congress, but also by the people.
I would like also to refer to the situation in Turkey where the Turkish government has control over the bases in Turkey, where the jurisdiction of Turkey is not impaired in anyway, and Turkey retains the right to terminate the treaty under circumstances determined by the host government. I think under such circumstances, the existence of the military bases may not be considered a derogation of sovereignty, Madam President.
FR. BERNAS. Let me be concrete, Madam President, in our circumstances. Suppose they were to have this situation where our government were to negotiate a treaty with the United States, and then the two executive departments in the ordinary course of negotiation come to an agreement. As our Constitution is taking shape now, if this is to be a treaty at all, it will have to be· submitted to our Senate for its ratification. Suppose, therefore, that what was agreed upon between the United States and the executive department of the Philippines is submitted and ratified by the Senate, then it is further submitted to the people for its ratification and subsequently, we ask the United States: "Complete the process by accepting it as a treaty through ratification by your Senate as the United States Constitution requires," would such an arrangement be in derogation of sovereignty?
MR. NOLLEDO. Under the circumstances the Commissioner just mentioned, Madam President, on the basis of the provision of Section 1 that "sovereignty resides in the Filipino people," then we would not consider that a derogation of our sovereignty on the basis and expectation that there was a plebiscite.11 (Emphasis supplied.)
As a safeguard against the derogation of national sovereignty, the present form of Section 25, Article XVIII was finalized by the Commission and ratified by the Filipino people in 1987.
On September 16, 1991, the Senate rejected the proposed Treaty of Friendship, Cooperation and Security, which would have extended the presence of US military bases in the Philippines. Nevertheless, the defense and security relationship between the Philippines and the United States continued in accordance with the MDT.12
Upon the expiration of the MBA in 1991, Section 25, Article XVIII came into effect. The presence of foreign military bases, troops or facilities in the country can only be allowed upon the satisfaction of all three requirements set forth in Section 25, Article XVIII.
On February 10, 1998, the Philippines and the United States entered into the Visitng Forces Agreement (VFA), which required the Philippines to facilitate the admission of United States personnel,13 a term defined in the same treaty as "United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government."14
United States Government equipment, materials, supplies, and other property imported into the Philippines in connection with activities to which the VFA applies, while not expressly stated to be allowed into the Philippines by the provisions of the VFA, were nevertheless declared to be free from Philippine duties, taxes and similar charges. Title thereto was also declared to remain with the United States.15
expressly allowed the importation into the Philippines of reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel.16 The VFA likewise expressly allowed the entry into the Philippines of (1) aircraft operated by or for the United States armed forces upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements; and (2) vessels operated by or for the United States armed forces upon approval of the Government of the Philippines, in accordance with international custom and practice and such agreed implementing arrangements as necessary.17
The VFA also provided for the jurisdiction over criminal and disciplinary cases over United States personnel with respect to offences committed within the Philippines.18
The VFA further stated that the same shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.19
Subsequently, the constitutionality of the VFA was questioned before the Court in the aforementioned October 10, 2000 case of BAYAN v. Zamora,20 and again in the February 11, 2009 case of Nicolas v. Romulo.21 In both cases, the Court held that Section 25, Article XVIII of the Constitution is applicable, but the requirements thereof were nevertheless complied with. In Nicolas, however, the implementing Romulo-Kenney Agreements of December 19 and. 22, 2006 concerning the custody of Lance Corporal Daniel J. Smith, who was charged with the crime of rape, were declared not in accordance with the VFA.
Thereafter, on April 28, 2014, the governments of the Philippines and the United States entered into the assailed EDCA.
The EDCA
Under the EDCA, the Philippines by mutual agreement with the United States, shall provide the United States forces the access and use of portions of Philippine territory. United States forces are "the entity comprising United States personnel and all property, equipment, and materiel of the United States Armed Forces present in the territory of the Philippines." These portions of Philippine territory that will be made available to the US are called "Agreed Locations," which is a new concept defined under Article II(4) of the EDCA as:
4. "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that the United States forces,22 United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may further be described in implementing arrangements. (Emphasis supplied.)
Aside from the right to access and to use the Agreed Locations, the United States may undertake the following types of activities within the Agreed Locations: security cooperation exercises; joint and combined training activities; humanitarian and disaster relief activities; and such other activities that as may be agreed upon by the Parties. "23 Article III(1) of the EDCA further states in detail the activities that the United States may conduct inside the Agreed Locations:
1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees· that United States forces, United States contractors, and vehicles, vessels, and aircrafts operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the Parties may agree. (Emphasis supplied.)
The United States may access and use the Agreed Locations without any obligation on its part to pay any rent or similar costs.24
In addition to the right to access and to use the Agreed Locations and to conduct various activities therein, the United States, upon request to the Philippines' Designated Authorities,25 can further temporarily access public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields ).26
The United States is also granted operational control of Agreed Locations to do construction activities, make alterations or improvements of the Agreed Locations.27 All buildings, non-relocatable structures, and assemblies affixed to the land in the Agreed Locations, including [those] altered or improved by United States forces, remain the property of the Philippines. Permanent buildings constructed by the United States forces become the property of the Philippines, once constructed, but shall be used by the United States forces until no longer required.28
Incidental to the access and use of the Agreed Locations, the US is granted the use of water, electricity and other public utilities,29 as well as the use of the radio spectrum in relation to the operation of its own telecommunications system.30
As to the management of the Agreed Locations, the United States forces are authorized to exercise ·an rights and authorities within the Agreed Locations that are necessary for their operational control or defense, including taking appropriate measures to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.31
The United States is authorized to preposition and store defense equipment, supplies, and materiel ("prepositioned materiel"), including but not limited to, humanitarian assistance and disaster relief equipment, supplies and material, at Agreed Locations.32 The prepositioned materiel of the United States forces shall be for the exclusive use of United States forces, and full title to all such. equipment, supplies and materiel remains with the United States.33 United States forces and United States contractors34 shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel.35 The United States forces and United States contractors shall retain title to all equipment, materiel, supplies, relocatable structures, and other movable property that have been imported into or acquired within the territory of the Philippines by or on behalf of United States forces.36
Considering the presence of US armed forces: military personnel, vehicles, vessels, and aircrafts and other defensive equipment, supplies, and materiel in the Philippines, for obvious military purposes and with the obvious intention of assigning or stationing them within the Agreed Locations, said Agreed Locations, for all intents and purposes, are considered military bases and fall squarely under the definition of a military base under Section 2, Presidential Decree No. 1227, otherwise known as "Punishing Unlawful Entry into Any Military Base in the Philippines," which states:
SECTION 2. The term "military base" as used in this decree means any military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines. (Emphasis supplied.)
In the same vein, Article XXVI of the 1947 RP-US Military Bases Agreement (MBA) defined a military base as "areas named in Annex A and Annex B and such additional areas as may be acquired for military purposes pursuant to the terms of this Agreement."37
Considering further that the United States armed forces stationed in the Philippines, as well as their relocatable structures, equipment and materiel are owned, maintained, controlled, and operated by the United States within Philippine territory, these Agreed Locations are clearly overseas military bases of the US with RP as its host country.
The EDCA provided for an initial term of ten years, which thereafter shall continue in force automatically, unless terminated by either party by giving one year's written notice through diplomatic channels of its intention to terminate the agreement.38
Interestingly, the EDCA has similar provisions found in the 1947 MBA:
Military Bases Agreement
(March 14, 1947) |
Enhanced Defense Cooperation
Agreement (April 28, 2014) |
|
Article III: DESCRIPTION OF RIGHTS
1. It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate for their control. |
Article III: AGREED LOCATIONS
4. The Philippines hereby grants the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations. x x x.
Article VI: SECURITY
3. United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense x x x. |
|
Article III: DESCRIPTION OF RIGHTS
2. Such rights, power and authority shall include, inter alia, the right, power and authority:
(a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases;
(b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases; |
Article III: AGREED LOCATIONS
4. The Philippines hereby grants the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations. x x x. |
| |
|
|
Article III: DESCRIPTION OF RIGHTS
2. Such rights, power and authority shall include, inter alia, the right, power and authority :
x x x x
(c) 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 waterborne craft, aircraft and other vehicles on water, in the air or on land comprising or in the vicinity of the bases; |
Article III: AGREED LOCATIONS
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.
Article IV: EQUIPMENT, SUPPLIES, AND MATERIEL
4. United States forces and United States contractors shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel. |
|
Article III: DESCRIPTION OF RIGHTS
2. Such rights, power and authority shall include, inter alia, the right, power and authority:
x x x x
(e) to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency. |
Article III: AGREED LOCATIONS
1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by and for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the Parties may agree.
Article IV: EQUIPMENT, SUPPLIES, AND MATERIEL
1. The Philippines hereby authorizes the United States forces, x x x to preposition and store defense equipment, supplies, and materiel ("prepositioned materiel") x x x.
x x x x
3. The prepositioned materiel of the United States forces shall be for the exclusive use of the United States forces, and full title to all such equipment, supplies, and materiel remains with the United States. United States forces shall have control over the access to and disposition of such prepositioned materiel and shall have the unencumbered right to remove such prepositioned materiel at any time from the territory of the Philippines. (Emphases supplied.) |
The EDCA is not a mere implementing agreement of the MDT or the VFA
As can be seen in the above table of comparison, these EDCA provisions establishes military areas similar to that in the Military Bases Agreement, and for that reason alone, the EDCA is far greater in scope than both the Mutual Defense Treaty and the Visiting Forces Agreement. The EDCA is not a mere implementing agreement of either the MDT or the VFA.
The EDCA is an international agreement that allows the presence in the Philippines of foreign military bases, troops and facilities, and thus requires that the three requisites under Section 25, Article XVIII be complied with. The EDCA must be submitted to the Senate for concurrence.
The majority opinion posits, inter alia, that the President may enter into an executive agreement on foreign military bases, troops, or facilities if: (a) it "is not the principal agreement that first allowed their entry or presence in the Philippines," or (b) it merely aims to implement an existing law or treaty. Likewise, the President alone had the choice to enter into the EDCA by way of an executive agreement or a treaty. Also, the majority suggests that executive agreements may cover the matter of foreign military forces if it involves detail adjustments of previously existing international agreements.
The above arguments fail to consider that Section 25, Article XVIII of the Constitution covers three distinct and mutually independent situations: the presence of foreign military bases or troops or facilities. The grant of entry to foreign military troops does not necessarily allow the establishment of military bases or facilities.39
Generally, the parties to an international agreement are given the freedom to choose the form of their agreement.
International agreements may be in the form of: (1) treaties, which require legislative concurrence after executive ratification; or (2) executive agreements, which are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties. Under Article 2 of the Vienna Convention on the Law of Treaties, a treaty is defined as an international agreement concluded between states in written form and governed by international law, whether em.bodied in a single instrument or in two or more related instruments and whatever its particular designation.40
In the 1961 case of Commissioner of Customs v. Eastern Sea Trading,41 the Court had occasion to state that "[i]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements em.bodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements."
In the more recent case of Bayan Muna v. Romulo,42 the Court expounded on the above pronouncement in this wise:
The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties' intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. · Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. x x x Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign governments. x x x. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc.xx x. (Citations omitted.)
However, it must be emphasized that while in the above case, the Court called attention to "one type of executive agreement which is a treaty-authorized or a treaty-implementing executive agreement, which necessarily would cover the same matter subject of the underlying treaty," still, the Court cited the special situation covered by Section 25, Article XVIII of the Constitution which explicitly prescribes the form of the international agreement. The Court stated:
But over and above the foregoing considerations is the fact that - save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process.43 (Emphasis supplied, citation omitted.)
Clearly, the Court had since ruled that when the situation and matters contemplated in Sec. 25, Article XVIII obtains, i.e., when the subject matter of an international agreement involves the ·presence of foreign military bases, troops or facilities, a treaty is required and that the same must be submitted to the Senate for the latter's concurrence. In BAYAN v. Zamora,44 the Court held that Section 25, Article XVIII, like Section 21, Article VII, embodies a phrase in the negative, i.e., "shall not be allowed" and therefore, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective.
What the majority did is to carve out exceptions to Section 25, Article XVIII when none is called for.
As previously discussed, the language of Section 25, Article XVIII is clear and unambiguous. The cardinal rule is that the plain, clear and unambiguous language of the Constitution should be construed as such and should not be given a construction that changes its meaning.45 The Court also enunciated in Chavez v. Judicial and Bar Council46 that:
The Constitution evince.s the direct action of the Filipino people by which the fundamental powers of government are established, limited and defined and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. The Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the principles and the framework upon which government and society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the branch tasked to interpret it. (Emphasis supplied; citation omitted.)
The majority opinion posits that the EDCA is consistent with the content, purpose and framework of the MDT and the VFA. As such, the majority argues that the EDCA may be in the form of an executive agreement as it merely implements the provisions of the MDT and the VFA.
I disagree. Compared closely with the provisions of the MDT and the VFA, the EDCA transcends in scope and substance the subject matters covered by the aforementioned treaties. Otherwise stated, the EDCA is an entirely new agreement unto itself.
The MDT in relation to the EDCA
We noted in Lim v. Executive Secretary47 that the MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. The aim of the treaty is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts.
As explicitly pronounced in its declaration of policies, the MDT was entered into between the Philippines and the United States in order to actualize their desire "to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack"48 and "further to strengthen their present efforts to collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific area."49
Under Article II of the MDT, the parties undertook "separately and jointly by self-help and mutual aid" to "maintain and develop their individual and collective capacity to resist armed attack."50 Article III thereof states that the parties to the treaty shall "consult together from time to time regarding the implementation of [the] Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific. "51
Moreover, Article IV states that the individual parties to the treaty "recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional process."52 This provision highlights the need for each party to follow their respective constitutional processes and, therefore, the MDT is not a self-executing agreement. It follows that if the Philippines aims to implement the MDT in the manner that the majority opinion suggests, such implementation must adhere to the mandate of Section 25, Article XVIII of the Constitution.
Also, under the above article, the parties are thereafter obligated to immediately report to the Security Council of the United Nations the occurrence of any such armed attack and all the measures taken as result thereof. Said measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.53 Article V of the treaty explained that "an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific."54
Under Article VIII of the treaty, the parties agreed that the treaty shall remain in force indefinitely and that either party may terminate it one year after notice has been given to the other party.55
Clear from the foregoing provisions is that the thrust of the MDT pertains to the furtherance of the avowed purpose of the parties thereto of maintaining and developing their individual and collective capacity to resist external armed attack only in the metropolitan territory of either party or in their island territories in the Pacific Ocean. Accordingly, the territories of the parties other than those mentioned are not covered by the MDT.
Conspicuously absent from the MDT are specific provisions regarding the presence in Philippine territory - whether permanent or temporary – of foreign military bases, troops, or facilities. The MDT did not contemplate the presence of foreign military bases, troops or facilities in our country in view of the fact that it was already expressly covered by the MBA that was earlier entered into by the Philippines and the United States in 1947. Moreover, the MDT contains no delegation of power to the President to enter into an agreement relative to the establishment of foreign military bases, troops, or facilities in our country. The MDT cannot also be treated as allowing an exception to the requirements of Section 25, Article XVIII of the Constitution, which took effect in 1987. As explained above, the reference to constitutional processes of either party in the MDT renders it obligatory that the Philippines follow Section 25, Article XVIII of the Constitution.
Indeed, the MDT covers defensive measures to counter an armed attack against either of the parties' territories or armed forces but there is nothing in the MDT that specifically authorizes the presence, whether temporary or permanent, of a party's bases, troops, or facilities in the other party's territory even during peace time or in mere anticipation of an armed attack.
On the other hand, the very clear-cut focal point of the EDCA is the authority granted to the United States forces and contractors to have unimpeded access to so-called Agreed Locations - which can be anywhere in the Philippines - and to build there military facilities and use the same to undertake various military activities. The very wording of the EDCA shows that it undoubtedly deals with the presence of foreign military bases, troops, and facilities in Philippine territory.
Thus, contrary to the posturing of the majority, the presence of foreign military bases, troops, or facilities provided under the EDCA cannot be traced to the MDT. Moreover, the general provisions of the MDT cannot prevail over the categorical and specific provision of Section 25, Article XVIII of the Constitution.
As will be further highlighted in the succeeding discussion, the EDCA creates new rights, privileges and obligations between the parties thereto.
The VFA in relation to the EDCA
With respect to the VFA, the EDCA likewise surpasses the provisions of the said former treaty.
The VFA primarily deals with the subject of allowing elements of the United States armed forces to visit the Philippines from time to time for the purpose of conducting activities, approved by the Philippine government, in line with the promotion and protection of the common security interests of both countries.
In the case of BAYAN v. Zamora, 56 the Court ruled that the VFA "defines the treatment of United States troops and personnel visiting the Philippines," "provides for the guidelines to govern such visits of military personnel," and "defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies."
We likewise reiterated in Lim v. Executive Secretary,57 that:
The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.
To a certain degree, the VFA is already an amplification of the MDT in that it allows the presence of visiting foreign troops for cooperative activities in peace time. Thus, in line with the mandate of Section 25, Article XVIII of the Constitution, the VFA is embodied in a treaty concurred in by the Senate.
In particular, the coverage of the VFA is as follows:
1) The admission of United States personnel and their departure from Philippines in connection with activities covered by the agreement, and the grant of exemption to United States personnel from passport and visa regulations upon entering and departing from the Philippines;58
2) The validity of the driver's license or permit issued by the United States, thus giving United States personnel the authority to operate· military or official vehicles within the Philippines;59
3) The rights of the Philippines and the United States in matters of criminal jurisdiction over United States personnel who commit offenses within the Philippine territory and punishable under Philippine laws;60
4) The importation and exportation of equipment, materials, supplies and other property, by United States personnel free from Philippine duties, taxes and similar charges;61
5) The movement of United States aircrafts, vessels and vehicles within Philippine territory;62 and
6) The duration and termination of the agreement.63
In contrast, the EDCA specifically deals with the following matters:
1) The authority of the United States forces to access facilities and areas, termed as "Agreed Locations," and the activities that may be allowed therein;64
2) The grant to the United States of operational control of Agreed Locations to do construction activities and make alterations or improvements thereon;65
3) The conditional access to the Agreed Locations of the Philippine Designated Authority and its authorized representative;66
4) The storage and prepositioning of defense equipment, supplies and materiel, as well as the unimpeded access granted to the United States contractors to the Agreed Locations in matters regarding the prepositioning, storage, delivery, management, inspection, use, maintenance and removal of the defense equipment, supplies, and materiel; and the prohibition that the preposition materiel shall not include nuclear weapons;67
5) a) The ownership of the Agreed Locations by the Philippines, b) the ownership of the equipment, materiel, supplies, relocatable structures and other moveable property imported or acquired by the United States, c) the ownership and use of the buildings, non-relocatable structures, and assemblies affixed to the land inside the Agreed Locations;68
6) The cooperation between the parties in taking measures to ensure protection, safety and security of United States forces, contractors and information in Philippine territory; the primary responsibility of the Philippines to secure the Agreed Locations, and the right of the United States to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense;69
7) The use of water, electricity and other public utilities;70
8) The use of the radio spectrum in connection with the operation of a telecommunications system by the United States;71
9) The authority granted to the of the United States to contract for any materiel, supplies, equipment, and services (including construction) to be furnished or undertaken inside Philippine territory;72
10) The protection of the environment and human health and safety, and the observance of Philippine laws on environment and health, and the prohibition against the intentional release of hazardous waste by the United States and the containment of thereof in case a spill occurs;73
11) The need to execute implementing arrangements to address details concerning the presence of United States forces at the Agreed Locations and the functional relations between the United States forces and the AFP with respect to the Agreed Locations;74 and
12) The resolution of disputes arising from the EDCA through consultation between the parties.75
Initially, what is abundantly clear with the foregoing enumeration is that the EDCA is an entirely new creation. The provisions of the EDCA are not found in or have no corresponding provisions in the VFA. They cover entirely different subject matters ·and they create new and distinct rights and obligations on the part of the Philippines and the United States.
Furthermore, as to the nature of the presence of foreign military troops in this country, the VFA is explicit in its characterization that it is an agreement between the governments of the Philippines and the United States regarding the treatment of United States Armed Forces visiting the Philippines. The Preamble of the VFA likewise expressly provides that, "noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines"76 and "recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines"77 the parties to the VFA agreed to enter into the said treaty. The use of the word visit is very telling. In its ordinary usage, to visit is to "stay temporarily with (someone) or at (a place) as a guest or tourist" or to "go to see (someone or something) for a specific purpose."78 Thus, the word visit implies the temporariness or impermanence of the presence at a specific location.
On the other hand, under the EDCA, United States forces and United States contractors are permitted to stay in the Agreed Locations to undertake military activities therein without any clear limitation as to the duration of their stay. Moreover, they are given unimpeded access to Agreed Locations to conduct different activities that definitely were not contemplated under the VFA.
The Court's ruling in Lim v. Executive Secretary79 provides some insights as to the scope of activities germane to the intention of the VFA. Thus:
The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game.
x x x x
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 combatrelated activities - as opposed to combat itself - such as the one subject of the instant petition, are indeed authorized. (Emphases supplied, citations omitted.)
The above discussion clearly shows that the VFA was intended for non-combat activities only.
In the instant case, the OSG averred that the entry of the United States forces into the Agreed Location is borne out of "military necessity."80 Military necessity means the necessity attending belligerent military operations that is held to justify all measures necessary to bring an enemy to complete submission excluding those (as cruelty, torture, poison, perfidy, wanton destruction) that are forbidden by modem laws and customs of war.81
In the instant case, some of the activities that the United States forces will undertake within the Agreed Locations such as prepositioning of defense equipment, supplies and materiel, and deploying of forces and materiel are actual. military measures supposedly put into place in anticipation of battle. To preposition means "to place military units, equipment, or supplies at or near the point of planned use or at a designated location to reduce reaction time, and to ensure timely support of a specific force during initial phases of an operation."82 On the other hand, materiel is defined as "all items necessary to equip, operate, maintain, and support military activities without distinction as to its application for administrative or combat purposes."83 Also, to deploy means "to place or arrange (armed forces) in battle disposition or formation or in locations appropriate for their future employment."84 Deployment also means "the rotation of forces into and out of an operational area."85
The EDCA likewise allows the construction of permanent buildings, which the United States forces can utilize until such time that they no longer need the use thereof. The construction of permanent buildings, including the alteration or improvement by the United States of existing buildings, structures and assemblies affixed to the land, are certainly necessary not only for the accommodation of its troops, bunkering of vessels, maintenance of its vehicles, but also the creation of the proper facilities for the storage and prepositioning of its defense materiel. This grant of authority to construct new buildings and the improvement of existing buildings inside the Agreed Locations - which buildings are to be used indefinitely – further evinces the permanent nature of the stay of United States forces and contractors in this country under the EDCA. This is a far cry from the temporary visits of United States armed forces contemplated in the VFA.
Moreover, aside from agreements that the Philippines and the United States may subsequently enter into with respect to the access of the United States forces in the Agreed Locations on a "rotational basis,"86 and other activities that the United States may conduct therein,87 the EDCA also contains provisions requiring the execution of further "implementing arrangements" with regard to description of the Agreed Locations,88 "[funding] for construction, development, operation and maintenance costs at the Agreed Locations,"89 and "additional details concerning the presence of the United States forces at the Agreed Locations and the functional relations between the United States forces and the AFP with respect to Agreed Locations."90
Article II(4) of the EDCA states that the Agreed Locations shall be provided by the Philippine Government through the AFP. What is readily apparent from said article is that the AFP is given a broad discretion to enter into agreements with the United States with respect to the Agreed Locations. The grant of such discretion to the AFP is without any guideline, limitation, or standard as to the size, area, location, boundaries and even the number of Agreed Locations to be provided to the United States fore.es. As there is no sufficient standard in the EDCA itself, and no means to determine the limits of authority granted, the AFP can exercise unfettered power that may have grave implications on national security. The intervention of the Senate through the constitutionally ordained treaty-making process in defining the new national policy concerning United States access to Agreed Locations enunciated in the EDCA, which has never been before expressly or impliedly authorized, is imperative and indispensible for the validity and effectivity of the EDCA.
The above distinctions between the EDCA and the VFA, therefore, negate the OSG's argument that the EDCA merely involves "adjustments in detail" of the VFA. To my mind, the EDCA is the general framework for the access and use of the Agreed Locations by the United States forces and contractors rather than an implementing instrument of both the MDT and the VFA.
As stated above, Section 25, Article XVIII contemplates three different situations: a treaty concerning the allowance within the Philippines of (a) foreign military bases, (b) foreign military troops, or (c) foreign military facilities, such that a treaty that involves any of these three standing alone would fall within the coverage of the said provision. The VFA clearly contemplates only visits of foreign military troops.
The VFA, which allows the presence of the units of the United States military troops, cannot by any stretch of the imagination include any arrangement that practically allows the establishment of United States military bases or facilities in the so-called Agreed Locations under the EDCA. Thus, the EDCA goes far-beyond the arrangement contemplated by the VFA and therefore it necessarily requires Senate concurrence as mandated by Section 25, Article XVIII of the Constitution. In the same vein, the initial entry of United States troops under the VFA cannot, as postulated by the ponencia, justify a "treaty-authorized" presence under the EDCA, since the presence contemplated in the EDCA also pertains to the establishment of foreign military bases or facilities, and not merely visiting troops.
The argument that the entry of the United States bases, troops and facilities under the EDCA is already allowed in view of the "initial entry" of United States troops under the VFA glaringly ignores that the entry of visiting foreign military troops is distinct and separate from the presence or establishment of foreign military bases or facilities in the country under Section 25, Article XVIII of the Constitution.
To reiterate, the EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT. Hence, it must satisfy the requirements under Section 25, Article XVIII of the Constitution. The Senate itself issued Resolution No. 105 on November 10, 2015, whereby it expressed its "definite stand on the non-negotiable power of the Senate to decide whether a treaty will be valid and effective depending on the Senate concurrence" and resolved "that the RP-US EDCA [is a] treaty [that] requires Senate concurrence in order to be valid and effective."
Incidentally, with respect to the VFA, there is a difference of opinion whether or not the same is an implementing agreement of the MDT, as the latter does not confer authority upon the United States President (or the Philippine President) to enter into an executive agreement to implement said treaties. Still, in Nicolas v. Romulo,91 the Court noted that even if the VFA was treated as an implementing agreement of the MDT, the VFA was submitted to the Senate for concurrence.
By no means should this opinion be construed as one questioning the President's intention and effort to protect our national territory and security. However, in the case of Tawang Multi-purpose Cooperative v. La Trinidad Water District,92 the Court said:
There is no "reasonable and legitimate" ground to violate the Constitution. The Constitution should never be violated by anyone. Right or wrong, the President, Congress, the Court, x x x have no choice but to follow the Constitution. Any act, however noble its intentions, is void if it violates the Constitution. This rule is basic.
In Social Justice Society, the Court held that, "In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed." In Sabio, the Court held that, "the Constitution is the highest law of the land. It is 'the basic and paramount law to which x x x all persons, including the highest officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the Constitution.'" In Bengzon v. Drilon, the Court held that, "the three branches of government must discharge their respective functions within the limits of authority conferred by the Constitution." In Mutuc v. Commission on Elections, the Court held that, "The three departments of government in the discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to [the Constitution's] commands. Whatever limits it imposes must be observed." (Emphases supplied, citations omitted.)
A final word. While it is true that the Philippines cannot stand alone and will need friends within and beyond this region of the world, still we cannot offend our Constitution and bargain away our sovereignty.
Accordingly, I vote to grant the consolidated petitions.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Footnotes
1 The Schooner Exchange vs. McFaddon and Others, 3 Law. ed., 287, 293; cited in Dizon v. Commanding General of the Phil. Ryukus Command, US. Army, 81Phil.286, 292 (1948).
2 BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655 (2000).
3 Id. at 653.
4 Id. at 650-654.
5 The Court explained in Nicolas v. Romulo (598 Phil. 262, 279-280 [2009]) that:
"[U]nder the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US.
x x x x
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines."
6 Military Bases Agreement (March 14, 1947), Article I, which provides:
Article I
GRANT OF BASES
1. The Government of the Republic of the Philippines (hereinafter referred to as the Philippines) grants to the Government of the United States of America (hereinafter referred to as the United States) the right to retain the use of the bases in the Philippines listed in Annex A attached hereto.
2. The Philippines agrees to permit the United States, upon notice to the Philippines, to use such of those bases listed in Annex Bas the United States determines to be required by military necessity.
3. The Philippines agrees to enter into negotiations with the United States at the latter's request, to permit the United States to expand such bases, to exchange such bases for other bases, to acquire additional bases, or relinquish rights to bases, as any of such exigencies may be required by military necessity.
4. A narrative description of the boundaries of the bases to which this Agreement relates is given in Annex A and Annex B. An exact description of the bases listed in Annex A, with metes and bounds, in conformity with the narrative descriptions, will be agreed upon between the appropriate authorities of the two Governments as soon as possible. With respect to any of the bases listed in Annex B, an exact description with metes and bounds, in conformity with the narrative description of such bases, will be agreed upon if and when such bases are acquired by the United States.
7 Id., Article III(1).
8 Id., Article XXIX.
9 Articles IV and V of the Mutual Defense Treaty (August 30, 1951) provides:
ARTICLE IV
Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional process.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
ARTICLE V
For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.
10 Mutual Defense Treaty (August 30, 1951), Article VIII.
11 IV RECORD OF THE CONSTITUTIONAL COMMISSION, pp. 661-662.
12 BAYAN v. Zamora, supra note 2.
13 Visiting Forces Agreement (February 10, 1998), Article III.
14 Id., Article I.
15 Id., Article VII.
16 Id., Article VII.
17 Id., Article VIII.
18 Id., Article V.
19 Id., Article IX.
20 Supra note 2.
21 Supra note 5.
22 "United States forces" means the entity comprising United States personnel and all property, equipment and materiel of the United States Armed Forces present in the territory of the Philippines. [Enhanced Defense Cooperation Agreement, Article II(2).]
23 Enhanced Defense Cooperation Agreement, Article I(3).
24 Id., Article III(3).
25 Id., Article II(5) states:
5. "Designated Authorities" means, respectively, the Philippine Department of National Defense, unless the Philippines otherwise provides written notice to the United States, and the United States Department of Defense, unless the United States otherwise provides written notice to the Philippines.
26 Id., Article III(2).
27 Id., Article III(4).
28 Id., Article V(4).
29 Id., Article VII(l).
30 Id., Article VII(2).
31 Id., Article VI(3).
32 Id., Article IV(l).
33 Id., Article IV(3).
34 Id., Article II defines United States contractors as:
3. "United States contractors" means companies and firms, and their employees, under contract or subcontract to or on behalf of the United States Department of Defense. United States contractors are not included as part of the definition of United States personnel in this Agreement, including within the context of the VFA.
35 Id., Article IV(4).
36 Id., Article V(3).
37 Annexes A and B referred to under the MBA included the following military bases in the Philippines, namely: Clark Field Air Base, Pampanga; Mariveles Military Reservation, POL Terminal and Training Area, Bataan; Camp John Hay Leave and Recreation Center, Baguio; Subic Bay, Northwest Shore Naval Base, Zambales Province, and the existing Naval reservation at Olongapo and the existing Baguio Naval Reservation; Caftacao-Sangley Point Navy Base, Cavite Province; Mactan Island Army and Navy Air Base; Florida Blanca Air Base, Pampanga; Camp Wallace, San Fernando, La Union; and Aparri Naval Air Base, among others. (Military Bases Agreement [March 14, 1947].)
38 Enhanced Defense Cooperation Agreement, Article XII(4).
39 BAYAN v. Zamora, supra note 2 at 653.
40 Id. at 657.
41 113 Phil. 333, 338 (1961).
42 656 Phil. 246, 271-272 (2011).
43 Id. at 273.
44 Supra note 2.
45 Soriano Ill v. Lista, 447 Phil. 566, 570 (2003).
46 G.R. No. 202242, April 16, 2013, 696 SCRA 496, 507-508.
47 430 Phil. 555, 571-572 (2002).
48 Mutual Defense Treaty, Preamble, paragraph 3.
49 Id., Preamble, paragraph 4.
50 Id., Article II.
51 Id., Article III.
52 Id., Article IV, first paragraph.
53 Id., Article IV, second paragraph.
54 Id., Article V.
55 Id., Article VII.
56 Supra note 2 at 652.
57 Supra note 47 at 572.
58 Visiting Forces Agreement, Article III.
59 Id., Article IV.
60 Id., Article V.
61 Id., Article VII.
62 Id., Article VIII.
63 Id., Article IX.
64 Enhanced Defense Cooperation Agreement, Article II.
65 Id., Article III(4).
66 Id., Article III(5).
67 Id., Article IV.
68 Id., Article V.
69 Id., Article VI.
70 Id., Article VII(1).
71 Id., Article VII(2).
72 Id., Article VIII.
73 Id., Article IX.
74 Id., Article X.
75 Id., Article XI.
76 Visiting Forces Agreement, Preamble, third paragraph.
77 Id., fifth paragraph.
78 http://www.oxforddictionaries.com/us/definition/american_english/visit. Accessed on December 14, 2015, 5:30 P.M.
79 Supra note 47 at 572-575.
80 Rollo (G.R. No. 212444), p. 481.
81 Webster's Third New International Dictionary [1993].
82 http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December 11, 2015, 11:48 A.M.
83 http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December 11, 2015, 11:48 A.M.
84 Webster's Third New International Dictionary [1993].
85 http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf. Accessed on December 11, 2015, 12:36 P.M.
86 Enhanced Defense Cooperation Agreement, Article I(1 )(b ).
87 Id., Article III(l ).
88 Id., Article II(4).
89 Id., Article III(6).
90 Id., Article X(3).
91 Chief Justice Reynato S. Puno and Justice Carpio submitted stirring dissenting opinions which assail the constitutionality of the VFA on its being unenforceable due to the absence ofratification by the US Senate.
92 661 Phil. 390, 406(2011).
The Lawphil Project - Arellano Law Foundation
