U.S.

Supreme Court
Dames & Moore v. Regan, 453 U.S. 654
(1981)
Dames & Moore v. Regan
No. 80-2078
Argued June 24, 1981
Decided July 2, 1981
453 U.S. 654
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR
THE NINTH CIRCUIT
Syllabus
In response to the seizure of American
personnel as hostages at the American
Embassy in Tehran, Iran, President Carter,
pursuant to the International Emergency
Economic Powers Act (IEEPA), declared a
national emergency on November 14, 1979,
and blocked the removal or transfer of all
property and interests in property of the
Government of Iran which were subject to the
jurisdiction of the United States. The Treasury
Department then issued implementing
regulations providing that,
"[u]nless licensed or authorized . . . , any
attachment, judgment, decree, lien, execution,
garnishment, or other judicial process is null
and void with respect to any property in which,
on or since [November 14, 1979,] there existed
an interest of Iran,"
and that any licenses or authorizations granted
could be "amended, modified, or revoked at
any time." The President then granted a
general license that authorized certain judicial
proceedings, including prejudgment
attachments, against Iran, but did not allow the
entry of any judgment or decree. On December

19, 1979, petitioner filed suit in Federal District

Court against the Government of Iran, the
Atomic Energy Organization of Iran, and a
number of Iranian banks, alleging that it was
owed a certain amount of money for services
performed under a contract with the Atomic
Energy Organization. The District Court issued
orders of attachment against the defendants'
property, and property of certain Iranian banks
was then attached to secure any judgment that
might be entered against them. Subsequently,
on January 19, 1981, the Americans held
hostage were released by Iran pursuant to an
agreement with the United States. Under this
agreement, the United States was obligated to
terminate all legal proceedings in United States
courts involving claims of United States
nationals against Iran, to nullify all attachments
and judgments obtained therein, and to bring
about the termination of such claims through
binding arbitration in an Iran-United States
Claims Tribunal. The President at the same time
issued implementing Executive Orders revoking
all licenses that permitted the exercise of "any
right, power, or privilege" with regard to Iranian
funds, nullifying all non-Iranian interests in
such assets acquired after the blocking order of
November
Page 453 U. S. 655
14, 1979, and requiring banks holding Iranian
assets to transfer them to the Federal Reserve
Bank of New York to be held or transferred as
directed by the Secretary of the Treasury. On
February 24, 1981, President Reagan issued an
Executive Order which ratified President
Carter's Executive Orders and "suspended" all
claims that may be presented to the Claims
Tribunal, but which provided that the
suspension of a claim terminates if the Claims
Tribunal determines that it has no jurisdiction
over the claim. Meanwhile, the District Court
granted summary judgment for petitioner and
awarded it the amount claimed under the
contract plus interest, but stayed execution of
the judgment pending appeal by the

defendants, and ordered that all prejudgment

attachments against the defendants be
vacated and that further proceedings against
the bank defendants be stayed. Petitioner then
filed an action in Federal District Court against
the United States and the Secretary of the
Treasury, seeking to prevent enforcement of
the various Executive Orders and regulations
implementing the agreement with Iran. It was
alleged that the actions of the President and
the Secretary of the Treasury were beyond their
statutory and constitutional powers, and, in any
event, were unconstitutional to the extent they
adversely affect petitioner's final judgment
against Iran and the Atomic Energy
Organization, its execution of that judgment, its
prejudgment attachments, and its ability to
continue to litigate against the Iranian banks.
The District Court dismissed the complaint for
failure to state a claim upon which relief could
be granted, but entered an injunction pending
appeal to the Court of Appeals prohibiting the
United States from requiring the transfer of
Iranian property that is subject to any writ of
attachment issued by any court in petitioner's
favor. This Court then granted certiorari before
judgment.
Held:
1. The President was authorized to nullify the
attachments and order the transfer of Iranian
assets by the provision of the IEEPA, 50 U.S.C.
1702(a)(1)(B), which empowers the President
to "compel," "nullify," or "prohibit" any
"transfer" with respect to, or transactions
involving, any property subject to the
jurisdiction of the United States, in which any
foreign country has any interest. Pp. 453 U. S.
669-674.
(a) Nothing in the legislative history of either
1702 or 5(b) of the Trading With the Enemy
Act (TWEA), from which 1702 was directly
drawn, requires reading out of 1702 all
meaning to the words "transfer," "compel," or
"nullify," and limiting the President's authority

in this case only to continuing the freeze, as

petitioner claims. To the contrary, both the
legislative history and cases interpreting the
TWEA fully sustain the President's broad
authority when acting under
Page 453 U. S. 656

assets was taken pursuant to specific

congressional authorization, it is
"supported by the strongest presumptions and
the widest latitude of judicial interpretation,
and the burden of persuasion would rest
heavily upon any who might attack it."

such congressional grant of power. And the

changes brought about by the enactment of
the IEEPA did not in any way affect the
President's authority to take the specific action
taken here. By the time petitioner brought the
instant action, the President had already
entered the freeze order, and petitioner
proceeded against the blocked assets only
after the Treasury Department had issued
revocable licenses authorizing such
proceedings and attachments. The
attachments obtained by petitioner, being
subject to revocation, were specifically made
subordinate to further actions which the
President might take under the IEEPA. Pp. 453
U. S. 671-673.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.

S. 579, 343 U. S. 637 (Jackson, J., concurring).
Under the circumstances of this case,
petitioner has not sustained that burden. P. 453
U. S. 674.

(b) Blocking orders, such as the one here,

permit the President to maintain foreign assets
at his disposal for use in negotiating the
resolution of a declared national emergency,
and the frozen assets serve as a "bargaining
chip" to be used by the President when dealing
with a hostile country. To limit the President's
authority, as petitioner urges, would mean that
claimants could minimize or eliminate this
"bargaining chip" through attachments or
similar encumbrances. Pp. 453 U. S. 673-674.

(a) Although neither the IEEPA nor the Hostage

Act constitutes specific authorization for the
President's suspension of the claims, these
statutes are highly relevant as an indication of
congressional acceptance of a broad scope for
executive action in circumstances such as
those presented in this case. Pp. 453 U. S. 675679.

(c) Petitioner's interest in its attachments was

conditional and revocable, and as such, the
President's action nullifying the attachments
and ordering the transfer of the assets did not
effect a taking of property in violation of the
Fifth Amendment absent just compensation.
P. 453 U. S. 674, n. 6.
(d) Because the President's action in nullifying
the attachments and ordering the transfer of

2. On the basis of the inferences to be drawn

from the character of the legislation, such as
the IEEPA and the Hostage Act, which Congress
has enacted in the area of the President's
authority to deal with international crises, and
from the history of congressional acquiescence
in executive claims settlement, the President
was authorized to suspend claims pursuant to
the Executive Order in question here. Pp. 453
U. S. 675-688.

(b) The United States has repeatedly exercised

its sovereign authority to settle the claims of its
nationals against foreign countries.
Page 453 U. S. 657
Although those settlements have sometimes
been made by treaty, there has also been a
longstanding practice of settling such claims by
executive agreement without the advice and
consent of the Senate, and this practice
continues at the present time. Pp. 453 U. S.
679-680.

(c) That Congress has implicitly approved the

practice of claims settlement by executive
agreement is best demonstrated by Congress'
enactment of the International Claims
Settlement Act of 1919, which created the
International Claims Commission, now the
Foreign Claims Settlement Commission, and
gave it jurisdiction to make final and binding
decisions with respect to claims by United
States nationals against settlement funds. And
the legislative history of the IEEPA further
reveals that Congress has accepted the
authority of the President to enter into
settlement agreements. Pp. 453 U. S. 680-682.
(d) In addition to congressional acquiescence in
the President's power to settle claims, prior
cases of this Court have also recognized that
the President has some measure of power to
enter into executive agreements without
obtaining the advice and consent of the
Senate. See, e.g., United States v. Pink, 315 U.
S. 203. Pp. 453 U. S. 682-683.
(e) Petitioner's argument that all settlement
claims prior to 1952, when the United States
had adhered to the doctrine of absolute
sovereign immunity should be discounted
because of the evolution of sovereign
immunity, is refuted by the fact that, since
1952, there have been at least 10 claim
settlements by executive agreement. Thus,
even if the pre-1952 cases should be
disregarded, congressional acquiescence in
settlement agreements since that time
supports the President's power to act here.
Pp. 453 U. S. 683-684.
(f) By enacting the Foreign Sovereign
Immunities Act of 1976 (FSIA), which granted
personal and subject matter jurisdiction to
federal district courts over commercial suits by
claimants against foreign states that waived
immunity, Congress did not divest the
President of the authority to settle claims. The
President, by suspending petitioner's claim, has
not circumscribed the jurisdiction of the United

States courts in violation of Art. III, but has

simply effected a change in the substantive law
governing the lawsuit. The FSIA was designed
to remove one particular barrier to suit,
namely, sovereign immunity, and cannot be
read as prohibiting the President from settling
claims of United States nationals against
foreign governments. Pp. 453 U. S. 684-686.
(g) Long continued executive practice, known
to and acquiesced in by Congress, raises a
presumption that the President's action has
been taken pursuant to Congress' consent.
Such practice is present here, and such a
presumption is also appropriate. P. 453 U. S.
686.
(h) The conclusion that the President's action in
suspending petitioner's
Page 453 U. S. 658
claim did not exceed his powers is buttressed
by the fact the President has provided an
alternative forum, the Claims Tribunal, to settle
the claims of the American nationals. Moreover,
Congress has not disapproved the action taken
here. Pp. 453 U. S. 686-688.
(i) While it is not concluded that the President
has plenary power to settle claims, even
against foreign governmental entities,
nevertheless, where, as here, the settlement of
claims has been determined to be a necessary
incident to the resolution of a major foreign
policy dispute between this country and
another, and Congress has acquiesced in the
President's action, it cannot be said that the
President lacks the power to settle such claim.
P. 453 U. S. 688.
3. The possibility that the President's actions
with respect to the suspension of the claims
may effect a taking of petitioner's property in
violation of the Fifth Amendment in the
absence of just compensation makes ripe for
adjudication the question whether petitioner
will have a remedy at law in the Court of

Claims. And there is no jurisdictional obstacle

to an appropriate action in that court under the
Tucker Act. Pp. 453 U. S. 688-690.
Affirmed.
REHNQUIST, J., delivered the opinion of the
Court, in which BURGER, C.J., and BRENNAN,
STEWART, WHITE, MARSHALL, and BLACKMUN,
JJ., joined; in all but n. 6 of which POWELL, J.,
joined; and in all but Part V of which STEVENS,
J., joined. STEVENS, J., filed an opinion
concurring in part, post, p. 453 U. S. 690.
POWELL, J., filed an opinion concurring in part
and dissenting in part, post,p. 453 U. S. 690.
Page 453 U. S. 659
JUSTICE REHNQUIST delivered the opinion of
the Court.
The questions presented by this case touch
fundamentally upon the manner in which our
Republic is to be governed. Throughout the
nearly two centuries of our Nation's existence
under the Constitution, this subject has
generated considerable debate. We have had
the benefit of commentators such a John Jay,
Alexander Hamilton, and James Madison writing
in The Federalist Paper at the Nation's very
inception, the benefit of astute foreign
observers of our system such as
Page 453 U. S. 660
Alexis de Tocqueville and James Bryce writing
during the first century of the Nation's
existence, and the benefit of many other
treatises, as well as more than 400 volumes of
reports of decisions of this Court. As these
writings reveal, it is doubtless both futile and
perhaps dangerous to find any epigrammatical
explanation of how this country has been
governed. Indeed, as Justice Jackson noted,
"[a] judge . . . may be surprised at the poverty
of really useful and unambiguous authority

applicable to concrete problems of executive

power as they actually present themselves."
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
S. 579, 343 U. S. 634 (1952) (concurring
opinion).
Our decision today will not dramatically alter
this situation, for the Framers "did not make
the judiciary the overseer of our
government."Id. at 343 U. S. 594 (Frankfurter,
J., concurring). We are confined to a resolution
of the dispute presented to us. That dispute
involves various Executive Orders and
regulations by which the President nullified
attachments and liens on Iranian assets in the
United States, directed that these assets be
transferred to Iran, and suspended claims
against Iran that may be presented to an
International Claims Tribunal. This action was
taken in an effort to comply with an Executive
Agreement between the United States and Iran.
We granted certiorari before judgment in this
case, and set an expedited briefing and
argument schedule, because lower courts had
reached conflicting conclusions on the validity
of the President's actions and, as the Solicitor
General informed us, unless the Government
acted by July 19, 1981, Iran could consider the
United States to be in breach of the Executive
Agreement.
But before turning to the facts and law which
we believe determine the result in this case, we
stress that the expeditious treatment of the
issues involved by all of the courts which have
considered the President's actions makes us
acutely aware of the necessity to rest decision
on the narrowest possible ground capable of
deciding the case. Ashwander v. TVA,
Page 453 U. S. 661
297 U. S. 288, 297 U. S. 347 (1936) (Brandeis,
J., concurring). This does not mean that
reasoned analysis may give way to judicial fiat.
It does mean that the statement of Justice

Jackson -- that we decide difficult cases

presented to us by virtue of our commissions,
not our competence -- is especially true here.
We attempt to lay down no general
"guidelines" covering other situations not
involved here, and attempt to confine the
opinion only to the very questions necessary to
decision of the case.
Perhaps it is because it is so difficult to
reconcile the foregoing definition of Art. III
judicial power with the broad range of vitally
important day-to-day questions regularly
decided by Congress or the Executive, without
either challenge or interference by the
Judiciary, that the decisions of the Court in this
area have been rare, episodic, and afford little
precedential value for subsequent cases. The
tensions present in any exercise of executive
power under the tripartite system of Federal
Government established by the Constitution
have been reflected in opinions by Members of
this Court more than once. The Court stated
in United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 299 U. S. 319-320 (1936):
"[W] e are here dealing not alone with an
authority vested in the President by an exertion
of legislative power, but with such an authority
plus the very delicate, plenary and exclusive
power of the President as the sole organ of the
federal government in the field of international
relations -- a power which does not require as a
basis for its exercise an act of Congress, but
which, of course, like every other governmental
power, must be exercised in subordination to
the applicable provisions of the Constitution."
And yet, 16 years later, Justice Jackson, in his
concurring opinion in Youngstown, supra, which
both parties agree brings together as much
combination of analysis and common sense as
there is in this area, focused not on the
"plenary and exclusive
Page 453 U. S. 662

power of the President," but rather responded

to a claim of virtually unlimited powers for the
Executive by noting:
"The example of such unlimited executive
power that must have most impressed the
forefathers was the prerogative exercised by
George III, and the description of its evils in the
Declaration of Independence leads me to doubt
that they were creating their new Executive in
his image."
343 U.S. at 343 U. S. 641.
As we now turn to the factual and legal issues
in this case, we freely confess that we are
obviously deciding only one more episode in
the never-ending tension between the
President exercising the executive authority in
a world that presents each day some new
challenge with which he must deal, and the
Constitution under which we all live and which
no one disputes embodies some sort of system
of checks and balances.
I
On November 4, 1979, the American Embassy
in Tehran was seized and our diplomatic
personnel were captured and held hostage. In
response to that crisis, President Carter, acting
pursuant to the International Emergency
Economic Powers Act, 91 Stat. 1626, 50 U.S.C.
1701-1706 (1976 ed., Supp. III) (hereinafter
IEEPA), declared a national emergency on
November 14, 1979, [Footnote 1] and blocked
the removal or transfer of
"all property and interests in property of the
Government of Iran, its instrumentalities and
controlled entities and the Central Bank of Iran
which are or become subject to
Page 453 U. S. 663
the jurisdiction of the United States. . . ."

Exec.Order No. 12170, 3 CFR 457 (1980), note

following 50 U.S.C. 1701 (1976 ed. Supp. III).
[Footnote 2] President Carter authorized the
Secretary of the Treasury to promulgate
regulations carrying out the blocking order. On
November 15, 1979, the Treasury Department's
Office of Foreign Assets Control issued a
regulation providing that,
"[u]nless licensed or authorized . . . any
attachment, judgment, decree, lien, execution,
garnishment, or other judicial process is null
and void with respect to any property in which,
on or since [November 14, 1979,] there existed
an interest of Iran."
31 CFR 535.203(e) (1980). The regulations
also made clear that any licenses or
authorizations granted could be "amended,
modified, or revoked at any time." 535.805.
[Footnote 3]
On November 26, 1979, the President granted
a general license authorizing certain judicial
proceedings against Iran, but which did not
allow the "entry of any judgment or of any
decree or order of similar or analogous
effect. . . ." 535.504(a). On December 19,
1979, a clarifying regulation was issued stating
that "the general authorization for judicial
proceedings contained in 535.504(a) includes
prejudgment attachment." 535.418.
On December 19, 1979, petitioner Dames &
Moore filed suit in the United States District
Court for the Central District of California
against the Government of Iran, the Atomic
Page 453 U. S. 664
Energy Organization of Iran, and a number of
Iranian banks. In its complaint, petitioner
alleged that its wholly owned subsidiary,
Dames & Moore International, S.R.L., was a
party to a written contract with the Atomic
Energy Organization, and that the subsidiary's
entire interest in the contract had been
assigned to petitioner. Under the contract, the

subsidiary was to conduct site studies for a

proposed nuclear power plant in Iran. As
provided in the terms of the contract, the
Atomic Energy Organization terminated the
agreement for its own convenience on June 30,
1979. Petitioner contended, however, that it
was owed $3,436,694.30 plus interest for
services performed under the contract prior to
the date of termination. [Footnote 4] The
District Court issued orders of attachment
directed against property of the defendants,
and the property of certain Iranian banks was
then attached to secure any judgment that
might be entered against them. On January 20,
1981, the Americans held hostage were
released by Iran pursuant to an Agreement
entered into the day before and embodied in
two Declarations of the Democratic and Popular
Republic of Algeria. Declaration of the
Government of the Democratic and Popular
Republic of Algeria (App. to Pet. for Cert. 2129), and Declaration of the Government of the
Democratic and Popular Republic of Algeria
Concerning the Settlement of Claims by the
Government of the United States of America
and the Government of the Islamic Republic of
Iran (id. at 335). The Agreement
Page 453 U. S. 665
stated that
"[i]t is the purpose of [the United States and
Iran] . . . to terminate all litigation as between
the Government of each party and the
nationals of the other, and to bring about the
settlement and termination of all such claims
through binding arbitration."
Id. at 21-22. In furtherance of this goal, the
Agreement called for the establishment of an
Iran-United States Claims Tribunal which would
arbitrate any claims not settled within six
months. Awards of the Claims Tribunal are to be
"final and binding," and "enforceable . . . in the
courts of any nation in accordance with its

laws." Id. at 32. Under the Agreement, the

United States is obligated
"to terminate all legal proceedings in United
States courts involving claims of United States
persons and institutions against Iran and its
state enterprises, to nullify all attachments and
judgments obtained therein, to prohibit all
further litigation based on such claims, and to
bring about the termination of such claims
through binding arbitration."
Id. at 22. In addition, the United States must
"act to bring about the transfer" by July 19,
1981, of all Iranian assets held in this country
by American banks. Id. at 24-25. One billion
dollars of these assets will be deposited in a
security account in the Bank of England, to the
account of the Algerian Central Bank, and used
to satisfy awards rendered against Iran by the
Claims Tribunal. Ibid.
On January 19, 1981, President Carter issued a
series of Executive Orders implementing the
terms of the agreement. Exec.Orders Nos.
12276-12285, 46 Fed.Reg. 7913-7932. These
Orders revoked all licenses permitting the
exercise of "any right, power, or privilege" with
regard to Iranian funds, securities, or deposits;
"nullified" all non-Iranian interests in such
assets acquired subsequent to the blocking
order of November 14, 1979; and required
those banks holding Iranian assets to transfer
them "to the Federal Reserve Bank of New
Page 453 U. S. 666
York, to be held or transferred as directed by
the Secretary of the Treasury." Exec.Order No.
12279, 46 Fed.Reg. 7919.
On February 24. 1081, President Reagan issued
an Executive Order in which he "ratified" the
January 19th Executive Orders. Exec.Order No.
12294, 46 Fed.Reg. 14111. Moreover, he
"suspended" all "claims which may be
presented to the . . . Tribunal," and provided
that such claims "shall have no legal effect in

any action now pending in any court of the

United States." Ibid. The suspension of any
particular claim terminates if the Claims
Tribunal determines that it has no jurisdiction
over that claim; claims are discharged for all
purposes when the Claims Tribunal either
awards some recovery and that amount is paid
or determines that no recovery is due.Ibid.
Meanwhile, on January 27, 1981, petitioner
moved for summary judgment in the District
Court against the Government of Iran and the
Atomic Energy Organization, but not against
the Iranian banks. The District Court granted
petitioner's motion and awarded petitioner the
amount claimed under the contract, plus
interest. Thereafter, petitioner attempted to
execute the judgment by obtaining writs of
garnishment and execution in state court in the
State of Washington, and a sheriff's sale of
Iranian property in Washington was noticed to
satisfy the judgment. However, by order of May
28, 1981, as amended by order of June 8, the
District Court stayed execution of its judgment
pending appeal by the Government of Iran and
the Atomic Energy Organization. The District
Court also ordered that all prejudgment
attachments obtained against the Iranian
defendants be vacated, and that further
proceedings against the bank defendants be
stayed in light of the Executive Orders
discussed above. App. to Pet. for Cert. 106-107.
On April 28, 1981, petitioner filed this action in
the District Court for declaratory and injunctive
relief against the United States and the
Secretary of the Treasury, seeking to
Page 453 U. S. 667
prevent enforcement of the Executive Orders
and Treasury Department regulations
implementing the Agreement with Iran. In its
complaint, petitioner alleged that the actions of
the President and the Secretary of the Treasury
implementing the Agreement with Iran were
beyond their statutory and constitutional

powers, and, in any event, were

unconstitutional to the extent they adversely
affect petitioner's final judgment against the
Government of Iran and the Atomic Energy
Organization, its execution of that judgment in
the State of Washington, its prejudgment
attachments, and its ability to continue to
litigate against the Iranian banks. Id. at 1-12.
On May 28, 1981, the District Court denied
petitioner's motion for a preliminary injunction
and dismissed petitioner's complaint for failure
to state a claim upon which relief could be
granted. Id. at 106-107. Prior to the District
Court's ruling, the United States Courts of
Appeals for the First and the District of
Columbia Circuits upheld the President's
authority to issue the Executive Orders and
regulations challenged by petitioner. See Chas.
T. Main Int'l, Inc. v. Khuzestan Water & Power
Authority, 651 F.2d 800 (CA1 1981); American
Int'l Group, Inc. v. Islamic Republic of Iran, 211
U.S.App.D.C. 468, 657 F.2d 430 (1981).
On June 3, 1981, petitioner filed a notice of
appeal from the District Court's order, and the
appeal was docketed in the United States Court
of Appeals for the Ninth Circuit. On June 4, the
Treasury Department amended its regulations
to mandate "the transfer of bank deposits and
certain other financial assets of Iran in the
United States to the Federal Reserve Bank of
New York by noon, June 19." App. to Pet. for
Cert. 151-152. The District Court, however,
entered an injunction pending appeal
prohibiting the United States from requiring the
transfer of Iranian property that is subject to
"any writ of attachment, garnishment,
judgment, levy, or other judicial lien" issued by
any court in favor of petitioner. Id. at 168.
Arguing that this is a case of "imperative public
importance," petitioner then sought a writ of
certiorari before
Page 453 U. S. 668
judgment. Pet. for Cert. 10. See 28 U.S.C.
2101 (e); this Court's Rule 18. Because the

issues presented here are of great significance

and demand prompt resolution, we granted the
petition for the writ, adopted an expedited
briefing schedule, and set the case for oral
argument on June 24, 1981. 452 U.S. 932
(1981).
II
The parties and the lower courts, confronted
with the instant questions, have all agreed that
much relevant analysis is contained
inYoungstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579 (1952). Justice Black's opinion for the
Court in that case, involving the validity of
President Truman's effort to seize the country's
steel mills in the wake of a nationwide strike,
recognized that "[t]he President's power, if any,
to issue the order must stem either from an act
of Congress or from the Constitution
itself." Id. at 343 U. S. 585. Justice Jackson's
concurring opinion elaborated in a general way
the consequences of different types of
interaction between the two democratic
branches in assessing Presidential authority to
act in any given case. When the President acts
pursuant to an express or implied authorization
from Congress, he exercises not only his
powers but also those delegated by Congress.
In such a case, the executive action
"would be supported by the strongest of
presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion
would rest heavily upon any who might attack
it."
Id. at 343 U. S. 637. When the President acts in
the absence of congressional authorization, he
may enter "a zone of twilight in which he and
Congress may have concurrent authority, or in
which its distribution is uncertain." Ibid. In such
a case, the analysis becomes more
complicated, and the validity of the President's
action, at least so far as separation of powers
principles are concerned, hinges on a
consideration of all the circumstances which

might shed light on the views of the Legislative

Branch toward such action, including
"congressional
Page 453 U. S. 669
inertia, indifference or
quiescence." Ibid. Finally, when the President
acts in contravention of the will of Congress,
"his power is at its lowest ebb," and the Court
can sustain his actions "only by disabling the
Congress from acting upon the
subject." Id. at 343 U. S. 637-638.
Although we have in the past found, and do
today find, Justice Jackson's classification of
executive actions into three general categories
analytically useful, we should be mindful of
Justice Holmes' admonition, quoted by Justice
Frankfurter in Youngstown, supra, at 343 U. S.
597 (concurring opinion), that "[t]he great
ordinances of the Constitution do not establish
and divide fields of black and white." Springer
v. Philippine Islands, 277 U. S. 189, 277 U. S.
209 (1928) (dissenting opinion). Justice Jackson
himself recognized that his three categories
represented "a somewhat over-simplified
grouping," 343 U.S. at 343 U. S. 635, and it is
doubtless the case that executive action in any
particular instance falls not neatly in one of
three pigeonholes, but rather at some point
along a spectrum running from explicit
congressional authorization to explicit
congressional prohibition. This is particularly
true as respects cases such as the one before
us, involving responses to international crises
the nature of which Congress can hardly have
been expected to anticipate in any detail.
III
In nullifying post-November 14, 1979,
attachments and directing those persons
holding blocked Iranian funds and securities to
transfer them to the Federal Reserve Bank of
New York for ultimate transfer to Iran, President
Carter cited five sources of express or inherent

power. The Government, however, has

principally relied on 203 of the IEEPA, 91 Stat.
1626, 50 U.S.C. 1702(a)(1) (1976 ed., Supp.
III), as authorization for these actions. Section
1702(a)(1) provides in part:

contention. In Chas. T. Main Int'l, Inc. v.

Khuzestan Water & Power Authority, the Court
of Appeals for the First Circuit explained:

as he may prescribe, by means of instructions,

licenses, or otherwise -- "

"The President relied on his IEEPA powers in

November, 1979, when he 'blocked' all Iranian
assets in this country, and again in January,
1981, when he 'nullified' interests acquired in
blocked property, and ordered that property's
transfer. The President's actions in this regard
are in keeping with the language of IEEPA:
initially he 'prevent[ed] and prohibit[ed]'
'transfers' of Iranian assets; later he 'direct[ed]
and compel[led]' the

"(A) investigate, regulate, or prohibit -- "

Page 453 U. S. 671

"(i) any transactions in foreign exchange,"

'transfer' and 'withdrawal' of the assets,

'nullify[ing]' certain 'rights' and 'privileges'
acquired in them."

"At the times and to the extent specified in

section 1701 of this title, the President may,
under such regulations
Page 453 U. S. 670

"(ii) transfers of credit or payments between,

by, through, or to any banking institution, to
the extent that such transfers or payments
involve any interest of any foreign country or a
national thereof,"
"(iii) the importing or exporting of currency or
securities, and"
"(B) investigate, regulate, direct and compel,
nullify, void, prevent or prohibit, any
acquisition, holding, withholding, use, transfer,
withdrawal, transportation, importation or
exportation of, or dealing in, or exercising any
right, power, or privilege with respect to, or
transactions involving, any property in which
any foreign country or a national thereof has
any interest;"
"by any person, or with respect to any
property, subject to the jurisdiction of the
United States."
The Government contends that the acts of
"nullifying" the attachments and ordering the
"transfer" of the frozen assets are specifically
authorized by the plain language of the above
statute. The two Courts of Appeals that have
considered the issue agreed with this

"Main argues that IEEPA does not supply the

President with power to override judicial
remedies, such as attachments and injunctions,
or to extinguish 'interests' in foreign assets
held by United States citizens. But we can find
no such limitation in IEEPA's terms. The
language of IEEPA is sweeping and unqualified.
It provides broadly that the President may void
or nullify the"
"exercising [by any person of] any right, power
or privilege with respect to . . . any property in
which any foreign country has any
interest. . . ."
"50 U.S.C. 1702(a)(1)(B)."
651 F.2d at 806-807 (emphasis in original).
In American Int'l Group, Inc. v. Islamic Republic
of Iran, the Court of Appeals for the District of
Columbia Circuit employed a similar rationale
in sustaining President Carter's action:
"The Presidential revocation of the license he
issued permitting prejudgment restraints upon
Iranian assets is an action that falls within the

plain language of the IEEPA. In vacating the

attachments, he acted to"
"nullify [and] void . . . any . . . exercising any
right, power, or privilege with respect to . . .
any property in which any foreign country . . .
has any interest . . . by any person . . . subject
to the jurisdiction of the United States."
211 U.S.App.D.C. at 477, 657 F.2d at 439
(footnote omitted).
Petitioner contends that we should ignore the
plain language of this statute because an
examination of its legislative history, as well as
the history of 5(b) of the Trading With the
Enemy Act (hereinafter TWEA), 40 Stat. 411, as
amended, 50 U.S.C.App. 5(b) (1976 ed. and
Supp. III), from which the pertinent language of
1702 is directly drawn,
Page 453 U. S. 672
reveals that the statute was not intended to
give the President such extensive power over
the assets of a foreign state during times of
national emergency. According to petitioner,
once the President instituted the November 14,
1979, blocking order, 1702 authorized him
"only to continue the freeze or to discontinue
controls." Brief for Petitioner 32.
We do not agree, and refuse to read out of
1702 all meaning to the words "transfer,"
"compel," or "nullify." Nothing in the legislative
history of either 1702 or 5(b)of the TWEA
requires such a result. To the contrary, we think
both the legislative history and cases
interpreting the TWEA fully sustain such a
result. To the contrary, we think both the
legislative history and cases interpreting the
TWEA fully sustain the broad authority of the
Executive when acting under this congressional
grant of power. See, e.g., Orvis v. Brownell 345
U. S. 183 (1953). [Footnote 5] Although
Congress intended
Page 453 U. S. 673

to limit the President's emergency power in

peacetime, we do not think the changes
brought about by the enactment of the IEEPA in
any way affected the authority of the President
to take the specific actions taken here. We
likewise note that, by the time petitioner
instituted this action, the President had already
entered the freeze order. Petitioner proceeded
against the blocked assets only after the
Treasury Department had issued revocable
licenses authorizing such proceedings and
attachments. The Treasury Regulations
provided that, "unless licensed," any
attachment is null and void, 31 CFR
535.203(e) (1980), and all licenses "may be
amended, modified, or revoked at any time."
535.805. As such, the attachments obtained by
petitioner were specifically made subordinate
to further actions which the President might
take under the IEEPA. Petitioner was on notice
of the contingent nature of its interest in the
frozen assets.

Because the President's action in nullifying the

attachments and ordering the transfer of the
assets was taken pursuant to specific
congressional authorization, it is

This Court has previously recognized that the

congressional purpose in authorizing blocking
orders is "to put control of foreign assets in the
hands of the President. . . ." Propper v.
Clark, 337 U. S. 472, 337 U. S. 493 (1949).
Such orders permit the President to maintain
the foreign assets at his disposal for use in
negotiating the resolution of a declared
national emergency. The frozen assets serve as
a "bargaining chip" to be used by the President
when dealing with a hostile country.
Accordingly, it is difficult to accept petitioner's
argument, because the practical effect of it is
to allow individual claimants throughout the
country to minimize or wholly eliminate this
"bargaining chip" through attachments,
garnishments, or similar encumbrances on
property. Neither the purpose the

Although we have concluded that the IEEPA

constitutes specific congressional authorization
to the President to nullify the attachments and
order the transfer of Iranian assets, there
remains the question of the President's
authority to suspend claims pending in
American courts. Such claims have, of course,
an existence apart from the attachments which
accompanied them. In terminating these claims
through Executive Order No. 12294, the
President purported to act under authority of
both the IEEPA and 22 U.S.C. 1732, the socalled "Hostage Act." [Footnote 7] 46 Fed.Reg.
14111 (1981).

Page 453 U. S. 674

statute was enacted to serve nor its plain
language supports such a result. [Footnote 6]

"supported by the strongest of presumptions

and the widest latitude of judicial
interpretation, and the burden of persuasion
would rest heavily upon any who might attack
it."
Youngstown, 343 U.S. at 343 U. S.
637 (Jackson, J., concurring). Under the
circumstances of this case, we cannot say that
petitioner has sustained that heavy burden. A
contrary ruling would mean that the Federal
Government as a whole lacked the power
exercised by the President, see id. at 343 U. S.
636-637, and that we are not prepared to say.
Page 453 U. S. 675
IV

We conclude that, although the IEEPA

authorized the nullification of the attachments,
it cannot be read to authorize the suspension
of the claims. The claims of American citizens
against Iran are not, in themselves,
transactions involving Iranian property or
efforts to exercise any rights with respect to
such property. An in personam lawsuit,
although it might eventually be reduced to

judgment and that judgment might be

executed upon, is an effort to establish liability
and fix damages, and does not focus on any
particular property within the jurisdiction. The
terms of the IEEPA therefore do not authorize
the President to suspend claims in American
courts. This is the view of all the courts which
have considered the question. Chas. T. Main
Int'l, Inc. v. Khuzestan Water & Power
Authority, 651 F.2d at 809-814; American Int'l
Group, Inc. v. Islamic Republic of Iran, 211
U.S.App.D.C. at 481, n. 15, 657 F.2d at 443, n.
15; The Marschalk Co. v. Iran National Airlines
Corp., 518 F.Supp. 69, 79 (SDNY
Page 453 U. S. 676
1981); Electronic Data Systems Corp. v. Social
Security Organization of Iran, 508 F.Supp. 1350,
131 (ND Tex.1981). The Hostage Act, passed in
1868, provides:
"Whenever it is made known to the President
that any citizen of the United States has been
unjustly deprived of his liberty by or under the
authority of any foreign government, it shall be
the duty of the President forthwith to demand
of that government the reasons of such
imprisonment; and if it appears to be wrongful
and in violation of the rights of American
citizenship, the President shall forthwith
demand the release of such citizen, and if the
release so demanded is unreasonably delayed
or refused, the President shall use such means,
not amounting to acts of war, as he may think
necessary and proper to obtain or effectuate
the release; and all the facts and proceedings
relative thereto shall as soon as practicable be
communicated by the President to Congress."
Rev.Stat. 2001, 22 U.S.C. 1732.
We are reluctant to conclude that this provision
constitutes specific authorization to the
President to suspend claims in American
courts. Although the broad language of the
Hostage Act suggests it may cover this case,

there are several difficulties with such a view.

The legislative history indicates that the Act
was passed in response to a situation unlike
the recent Iranian crisis. Congress in 1868 was
concerned with the activity of certain countries
refusing to recognize the citizenship of
naturalized Americans traveling abroad and
repatriating such citizens against their
will. See, e.g., Cong.Globe, 40th Cong., 2d
Sess., 4331 (1868) (Sen. Fessenden); id. at
4354 (Sen. Conness); see also 22 U.S.C.
1731. These countries were not interested in
returning the citizens in exchange for any sort
of ransom. This also explains the reference in
the Act to imprisonment "in violation of the
rights of American citizenship." Although the
Iranian hostage-taking violated international
law and common decency,
Page 453 U. S. 677
the hostages were not seized out of any refusal
to recognize their American citizenship -- they
were seized precisely because of their
American citizenship. The legislative history is
also somewhat ambiguous on the question
whether Congress contemplated Presidential
action such as that involved here, or rather
simply reprisals directed against the offending
foreign country and its citizens. See,
e.g.,Cong.Globe, 40th Cong., 2d Sess., 4205
(1868); American Int'l Group, Inc. v. Islamic
Republic of Iran, supra, at 490-491, 657 F.2d at
452-453 (opinion of Mikva, J.).
Concluding that neither the IEEPA nor the
Hostage Act constitutes specific authorization
of the President's action suspending claims,
however, is not to say that these statutory
provisions are entirely irrelevant to the
question of the validity of the President's
action. We think both statutes highly relevant
in the looser sense of indicating congressional
acceptance of a broad scope for executive
action in circumstances such as those
presented in this case. As noted in Part
III, supra, at 453 U. S. 670-672, the IEEPA

delegates broad authority to the President to

act in times of national emergency with respect
to property of a foreign country. The Hostage
Act similarly indicates congressional willingness
that the President have broad discretion when
responding to the hostile acts of foreign
sovereigns. As Senator Williams, draftsman of
the language eventually enacted as the
Hostage Act, put it:
"If you propose any remedy at all, you must
invest the Executive with some discretion, so
that he may apply the remedy to a case as it
may arise. As to England or France, he might
adopt one policy to relieve a citizen imprisoned
by either one of those countries; as to the
Barbary powers, he might adopt another policy;
as to the islands of the ocean, another. With
different countries that have different systems
of government, he might adopt different
means."
Cong.Globe, 40th Cong., 2d Sess., 4359 (1868).
Page 453 U. S. 678
Proponents of the bill recognized that it placed
a "loose discretion" in the President's
hands, id. at 4238 (Sen. Stewart), but argued
that "[s]omething must be intrusted to the
Executive," and that "[t]he President ought to
have the power to do what the exigencies of
the case require to rescue [a] citizen from
imprisonment." Id. at 4233, 4357 (Sen.
Williams). An original version of the Act, which
authorized the President to suspend trade with
a foreign country and even arrest citizens of
that country in the United States in retaliation,
was rejected because
"there may be a great variety of cases arising
where other and different means would be
equally effective, and where the end desired
could be accomplished without resorting to
such dangerous and violent measures."
Id. at 4233 (Sen. Williams).

Although we have declined to conclude that the

IEEPA or the Hostage Act directly authorizes the
President's suspension of claims for the
reasons noted, we cannot ignore the general
tenor of Congress' legislation in this area in
trying to determine whether the President is
acting alone, or at least with the acceptance of
Congress. As we have noted, Congress cannot
anticipate and legislate with regard to every
possible action the President may find it
necessary to take, or every possible situation in
which he might act. Such failure of Congress
specifically to delegate authority does not,
"especially . . . in the areas of foreign policy
and national security," imply "congressional
disapproval" of action taken by the
Executive. Haig v. Agee, ante at 453 U. S. 291.
On the contrary, the enactment of legislation
closely related to the question of the
President's authority in a particular case which
evinces legislative intent to accord the
President broad discretion may be considered
to "invite" "measures on independent
presidential responsibility," Youngstown, 343
U.S. at 343 U. S. 637 (Jackson, J., concurring).
At least this is so where there is no contrary
indication of legislative intent and when, as
here, there is a history of congressional
acquiescence in conduct of the sort
Page 453 U. S. 679
engaged in by the President. It is to that history
which we now turn.
Not infrequently in affairs between nations,
outstanding claims by nationals of one country
against the government of another country are
"sources of friction" between the two
sovereigns. United States v. Pink, 315 U. S.
203, 315 U. S. 225 (1942). To resolve these
difficulties, nations have often entered into
agreements settling the claims of their
respective nationals. As one treatise writer puts
it, international agreements settling claims by
nationals of one state against the government
of another "are established international

practice reflecting traditional international

theory." L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that
principle, the United States has repeatedly
exercised its sovereign authority to settle the
claims of its nationals against foreign countries.
Though those settlements have sometimes
been made by treaty, there has also been a
longstanding practice of settling such claims by
executive agreement, without the advice and
consent of the Senate. [Footnote 8] Under such
agreements, the President has agreed to
renounce or extinguish claims of United States
nationals against foreign governments in return
for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of
these settlements were encouraged by the
United States claimants themselves, since a
claimant's only hope of obtaining any payment
at all might lie in having his Government
negotiate a diplomatic settlement on his behalf.
But it is also undisputed
Page 453 U. S. 680
that the
"United States has sometimes disposed of the
claims of its citizens without their consent, or
even without consultation with them, usually
without exclusive regard for their interests, as
distinguished from those of the nation as a
whole."
Henkin, supra, at 262263. Accord, Restatement (Second) of Foreign
Relations Law of the United States 213 (1965)
(President "may waive or settle a claim against
a foreign state . . . [even] without the consent
of the [injured] national"). It is clear that the
practice of settling claims continues today.
Since 1952, the President has entered into at
least 10 binding settlements with foreign
nations, including an $80 million settlement
with the People's Republic of China. [Footnote
9]

Crucial to our decision today is the conclusion

that Congress has implicitly approved the
practice of claim settlement by executive
agreement. This is best demonstrated by
Congress' enactment of the International
Claims Settlement Act of 1949, 64 Stat. 13, as
amended, 22 U.S.C. 1621 et seq. (1976 ed.
and Supp. IV). The Act had two purposes: (1) to
allocate to United States nationals funds
received in the course of an executive claims
settlement with Yugoslavia, and (2) to provide a
procedure whereby funds resulting from future
settlements could be distributed. To achieve
these ends Congress created the International
Claims Commission, now the Foreign Claims
Settlement Commission, and gave it
jurisdiction to make final and binding decisions
with respect to claims by United States
nationals against settlement funds. 22 U.S.C.
1623(a). By creating a procedure to implement
future settlement agreements, Congress placed
its stamp of approval on such agreements.
Indeed, the legislative history of the Act
observed that the United States was seeking
settlements
Page 453 U. S. 681
with countries other than Yugoslavia, and that
the bill contemplated settlements of a similar
nature in the future. H.R.Rep. No. 770, 81st
Cong., 1st Sess., 4, 8 (1949).
Over the years, Congress has frequently
amended the International Claims Settlement
Act to provide for particular problems arising
out of settlement agreements, thus
demonstrating Congress' continuing
acceptance of the President's claim settlement
authority. With respect to the Executive
Agreement with the People's Republic of China,
for example, Congress established an allocation
formula for distribution of the funds received
pursuant to the Agreement. 22 U.S.C. 1627(f)
(1976 ed., Supp. IV). As with legislation
involving other executive agreements,
Congress did not question the fact of the

settlement or the power of the President to

have concluded it. In 1976, Congress
authorized the Foreign Claims Settlement
Commission to adjudicate the merits of claims
by United States nationals against East
Germany, prior to any settlement with East
Germany, so that the Executive would "be in a
better position to negotiate an adequate
settlement . . . of these claims." S.Rep. No. 941188, p. 2 (1976); 22 U.S.C. 1644b. Similarly,
Congress recently amended the International
Claims Settlement Act to facilitate the
settlement of claims against Vietnam. 22 U.S.C.
1645, 1645a(5) (1976 ed., Supp. IV). The
House Report stated that the purpose of the
legislation was to establish an official inventory
of losses of private United States property in
Vietnam so that recovery could be achieved
"through future direct Government-toGovernment negotiation of private property
claims." H.R.Rep. No. 96-915, pp. 2-3 (1980).
Finally, the legislative history of the IEEPA
further reveals that Congress has accepted the
authority of the Executive to enter into
settlement agreements. Though the IEEPA was
enacted to provide for some limitation on the
President's emergency powers, Congress
stressed that
"[n]othing in this act is intended . . . to interfere
with the authority
Page 453 U. S. 682
of the President to [block assets], or to impede
the settlement of claims of U.S. citizens against
foreign countries."
S.Rep. No. 9566, p. 6 (1977); 50 U.S.C.
1706(a)(1) (1976 ed., Supp. III). [Footnote 10]
In addition to congressional acquiescence in
the President's power to settle claims, prior
cases of this Court have also recognized that
the President does have some measure of
power to enter into executive agreements
without obtaining the advice and consent of

10

the Senate. In United States v. Pink, 315 U. S.

203 (1942), for example, the Court upheld the
validity of the Litvinov Assignment, which was
part of an Executive Agreement whereby the
Soviet Union assigned to the United States
amounts owed to it by American nationals so
that outstanding claims of other American
nationals could
Page 453 U. S. 683
be paid. The Court explained that the
resolution of such claims was integrally
connected with normalizing United States'
relations with a foreign state:
"Power to remove such obstacles to full
recognition as settlement of claims of our
nationals . . . certainly is a modest implied
power of the President. . . . No such obstacle
can be placed in the way of rehabilitation of
relations between this country and another
nation unless the historic conception of the
powers and responsibilities . . . is to be
drastically revised."
Id. at 315 U. S. 229-230. Similarly, Judge
Learned Hand recognized:
"The constitutional power of the President
extends to the settlement of mutual claims
between a foreign government and the United
States, at least when it is an incident to the
recognition of that government; and it would be
unreasonable to circumscribe it to such
controversies. The continued mutual amity
between the nation and other powers again
and again depends upon a satisfactory
compromise of mutual claims; the necessary
power to make such compromises has existed
from the earliest times and been exercised by
the foreign offices of all civilized nations."
Ozanic v. United States, 188 F.2d 228, 231 (CA2
1951).
Petitioner raises two arguments in opposition to
the proposition that Congress has acquiesced

in this longstanding practice of claims

settlement by executive agreement. First, it
suggests that all pre-1952 settlement claims,
and corresponding court cases such
as Pink,should be discounted because of the
evolution of the doctrine of sovereign
immunity. Petitioner observes that, prior to
1952, the United States adhered to the
doctrine of absolute sovereign immunity, so
that, absent action by the Executive, there
simply would be no remedy for a United States
national against a foreign government. When
the United States in 1952 adopted a more
restrictive
Page 453 U. S. 684
notion of sovereign immunity, by means of the
so-called "Tate" letter, it is petitioner's view
that United States nationals no longer needed
executive aid to settle claims, and that, as a
result, the President's authority to settle such
claims in some sense "disappeared." Though
petitioner's argument is not wholly without
merit, it is refuted by the fact that, since 1952,
there have been at least 10 claims settlements
by executive agreement. Thus, even if the pre1952 cases should be disregarded,
congressional acquiescence in settlement
agreements since that time supports the
President's power to act here.
Petitioner next asserts that Congress divested
the President of the authority to settle claims
when it enacted the Foreign Sovereign
Immunities Act of 1976 (hereinafter FSIA), 28
U.S.C. 1330, 1602 et seq. The FSIA granted
personal and subject matter jurisdiction in the
federal district courts over commercial suits
brought by claimants against those foreign
states which have waived immunity. 28 U.S.C.
1330. Prior to the enactment of the FSIA, a
foreign government's immunity to suit was
determined by the Executive Branch on a caseby-case basis. According to petitioner, the
principal purpose of the FSIA was to depoliticize
these commercial lawsuits by taking them out

of the arena of foreign affairs -- where the

Executive Branch is subject to the pressures of
foreign states seeking to avoid liability through
a grant of immunity -- and by placing them
within the exclusive jurisdiction of the courts.
Petitioner thus insists that the President, by
suspending its claims, has circumscribed the
jurisdiction of the United States courts in
violation of Art. III of the Constitution.
We disagree. In the first place, we do not
believe that the President has attempted to
divest the federal courts of jurisdiction.
Executive Order No. 12294 purports only to
"suspend" the claims, not divest the federal
court of "jurisdiction." As we read the Executive
Order, those claims not within the jurisdiction
of the Claims Tribunal will "revive"
Page 453 U. S. 685
and become judicially enforceable in United
States courts. This case, in short, illustrates the
difference between modifying federal court
jurisdiction and directing the courts to apply a
different rule of law. See United States v.
Schooner Peggy, 1 Cranch 103 (1801). The
President has exercised the power, acquiesced
in by Congress, to settle claims and, as such,
has simply effected a change in the substantive
law governing the lawsuit. Indeed, the very
example of sovereign immunity belies
petitioner's argument. No one would suggest
that a determination of sovereign immunity
divests the federal courts of "jurisdiction." Yet
petitioner's argument, if accepted, would have
required courts prior to the enactment of the
FSIA to reject as an encroachment on their
jurisdiction the President's determination of a
foreign state's sovereign immunity.
Petitioner also reads the FSIA much too broadly.
The principal purpose of the FSIA was to codify
contemporary concepts concerning the scope
of sovereign immunity and withdraw from the
President the authority to make binding
determinations of the sovereign immunity to be

11

accorded foreign states. See Chas. T. Main Int'l,

Inc. v. Khuzestan Water & Power Authority, 651
F.2d at 813-814;American Int'l Group, Inc. v.
Islamic Republic of Iran, 211 U.S.App.D.C. at
482, 67 F.2d at 444. The FSIA was thus
designed to remove one particular barrier to
suit, namely sovereign immunity, and cannot
be fairly read as prohibiting the President from
settling claims of United States nationals
against foreign governments. It is telling that
the Congress which enacted the FSIA
considered, but rejected, several proposals
designed to limit the power of the President to
enter into executive agreements, including
claims settlement agreements. [Footnote 11]
Page 453 U. S. 686
It is quite unlikely that the same Congress that
rejected proposals to limit the President's
authority to conclude executive agreements
sought to accomplish that very purpose sub
silentio through the FSIA. And, as noted above,
just one year after enacting the FSIA, Congress
enacted the IEEPA, where the legislative history
stressed that nothing in the IEEPA was to
impede the settlement of claims of United
States citizens. It would be surprising for
Congress to express this support for settlement
agreements had it intended the FSIA to
eliminate the President's authority to make
such agreements.
In light of all of the foregoing -- the inferences
to be drawn from the character of the
legislation Congress has enacted in the area,
such as the IEEPA and the Hostage Act, and
from the history of acquiescence in executive
claims settlement -- we conclude that the
President was authorized to suspend pending
claims pursuant to Executive Order No. 12294.
As Justice Frankfurter pointed out
inYoungstown, 343 U.S. at 343 U. S. 610-611,
"a systematic, unbroken, executive practice,
long pursued to the knowledge of the Congress
and never before questioned . . . may be

treated as a gloss on 'Executive Power' vested

in the President by 1 of Art. II."
Past practice does not, by itself, create power,
but
"long-continued practice, known to and
acquiesced in by Congress, would raise a
presumption that the [action] had been [taken]
in pursuance of its consent. . . ."
United States v. Midwest Oil Co., 236 U. S.
459, 236 U. S. 474 (1915). See Haig v. Agee,
ante at 453 U. S. 291-292. Such practice is
present here, and such a presumption is also
appropriate. In light of the fact that Congress
may be considered to have consented to the
President's action in suspending claims, we
cannot say that action exceeded the
President's powers.
Our conclusion is buttressed by the fact that
the means
Page 453 U. S. 687
chosen by the President to settle the claims of
American nationals provided an alternative
forum, the Claims Tribunal which is capable of
providing meaningful relief. The Solicitor
General also suggests that the provision of the
Claims Tribunal will actually enhance the
opportunity for claimants to recover their
claims, in that the Agreement removes a
number of jurisdictional and procedural
impediments faced by claimants in United
States courts. Brief for Federal Respondents 1314. Although being overly sanguine about the
chances of United States claimants before the
Claims Tribunal would require a degree of
naivete which should not be demanded even of
judges, the Solicitor General's point cannot be
discounted. Moreover, it is important to
remember that we have already held that the
President has the statutory authority to nullify
attachments and to transfer the assets out of
the country. The President's power to do so
does not depend on his provision of a forum

whereby claimants can recover on those

claims. The fact that the President has provided
such a forum here means that the claimants
are receiving something in return for the
suspension of their claims, namely, access to
an international tribunal before which they may
well recover something on their claims.
Because there does appear to be a real
"settlement" here, this case is more easily
analogized to the more traditional claim
settlement cases of the past.
Just as importantly, Congress has not
disapproved of the action taken here. Though
Congress has held hearings on the Iranian
Agreement itself, [Footnote 12] Congress has
not enacted legislation, or even passed a
resolution, indicating its displeasure with the
Agreement. Quite the contrary, the relevant
Senate
Page 453 U. S. 688
Committee has stated that the establishment
of the Tribunal is "of vital importance to the
United States." S.Rep. No. 97-71, p. 5 (1981).
[Footnote 13] We are thus clearly not
confronted with a situation in which Congress
has in some way resisted the exercise of
Presidential authority.
Finally, we reemphasize the narrowness of our
decision. We do not decide that the President
possesses plenary power to settle claims, even
as against foreign governmental entities. As
the Court of Appeals for the First Circuit
stressed,
"[t]he sheer magnitude of such a power,
considered against the background of the
diversity and complexity of modern
international trade, cautions against any
broader construction of authority than is
necessary."
Chas. T. Main Int'l, Inc. v. Khuzestan Water
Power Authority, 651 F.2d at 814. But where, as
here, the settlement of claims has been

12

determined to be a necessary incident to the

resolution of a major foreign policy dispute
between our country and another, and where,
as here, we can conclude that Congress
acquiesced in the President's action, we are not
prepared to say that the President lacks the
power to settle such claims.
V
We do not think it appropriate at the present
time to address petitioner's contention that the
suspension of claims, if authorized, would
constitute a taking of property in violation of
the Fifth Amendment to the United States
Constitution in the absence of just
compensation. [Footnote 14] Both petitioner
and
Page 453 U. S. 689
the Government concede that the question
whether the suspension of the claims
constitutes a taking is not ripe for review. Brief
for Petitioner 34, n. 32; Brief for Federal
Respondents 65. Accord, Chas. T. Main Int'l,
Inc. v. Khuzestan Water & Power Authority,
supra, at 814-815; American Int'l Group, Inc. v.
Islamic Republic of Iran, 211 U.S.App.D.C. at
485. 657 F.2d at 447. However, this contention,
and the possibility that the President's actions
may effect a taking of petitioner's property,
make ripe for adjudication the question
whether petitioner will have a remedy at law in
the Court of Claims under the Tucker Act, 28
U.S.C. 1491 (1976 ed., Supp. III), in such an
event. That the fact and extent of the taking in
this case is yet speculative is inconsequential,
because "there must be, at the time of
taking, reasonable, certain and adequate
provision for obtaining
compensation.'" Regional Rail Reorganization
Act Cases, 419 U. S. 102, 419 U. S. 124-125
(1974), quoting Cherokee Nation v. Southern
Kansas R. Co., 135 U. S. 641, 135 U. S.
659 (1890); see also Cities Service Co. v.
McGrath, 342 U. S. 330, 342 U. S. 335-336

(1952); Duke Power Co. v. Carolina

Environmental Study Group, Inc., 438 U. S.
59, 438 U. S. 94, n. 39 (1978).
It has been contended that the "treaty
exception" to the jurisdiction of the Court of
Claims, 28 U.S.C. 1502, might preclude the
Court of Claims from exercising jurisdiction
over any takings claim the petitioner might
bring. At oral argument, however, the
Government conceded that 1502 would not
act as a bar to petitioner's action in the Court
of Claims. Tr. of Oral Arg. 392, 47. We
agree. See United States v. Weld, 127 U. S.
51 (1888); United States v. Old Settlers, 148 U.
S. 427 (1893); Hughes Aircraft Co. v. United
States,209 Ct.Cl. 446, 534 F.2d 889 (1976).
Accordingly, to the extent petitioner believes it
has suffered an unconstitutional taking by the
suspension of the claims, we see no
jurisdictional

[G.R. No. L-10500. June 30, 1959.]

USAFFE VETERANS ASSOCIATION,
INC., Plaintiff-Appellant, v. THE
TREASURER OF THE PHILIPPINES, ET
AL., Defendants-Appellees.
Lorenzo B. Camins, Castor C. Ames and
Alberto M. K. Jamir for Appellant.
Solicitor General Ambrosio Padilla,
Assistant Solicitor General Jose P.
Alejandro and Solicitor Jorge R. Coquia
for Appellees.

Page 453 U. S. 690

obstacle to an appropriate action in the United
States Court of Claims under the Tucker Act.
The judgment of the District Court is
accordingly affirmed, and the mandate shall
issue forthwith.
It is so ordered.

SYLLABUS

1. UNITED STATES GRANTS; GRANT FOR THE

OPERATION AND MAINTENANCE OF THE
PHILIPPINE ARMY; UNEXPENDED SUMS
REFUNDABLE. The United States
Congressional Act of December 17, 1941
(Public Law No. 353), appropriating $269million, expressly provided that the amount
"shall be available for payment to the
Government of the Commonwealth of the
Philippines upon its written request either in
advance of or in reimbursement for all or any
part of the estimated or actual costs" of
operation, mobilization oand maintenance of
the Philippine Army. Held: Ownership of the
money did not vest in the Philippine
Government upon delivery thereof. In any
systems of accounting, advances of funds for
expenditures contemplate disbursements to be

13

reported, and credited if apporoved, against

such advances the unexpended sums to be
returned later.
2. INTERNATIONAL LAW; EXECUTIVE
AGREEMENTS; BINDING EVEN WITHOUT
CONCURRENCE OF SENATE. --The Court
apparently holds that Executive agreements
may be entered into with other states, and are
effected even without the concurrence of the
Senate.
3. ID.; ID.; ID.; NATURE OF EXECUTIVE
AGREEMENTS. Executive Agreements fall
into two classes: (1) agreements entered into
may be termed as presidential agreements,
and (2) agreements entered into purxuance of
acts of Congress, which have been designated
as Congressional-Executive Agreements.
4. ID.; ID.; ID.; ID.; ROMULO-SNYDER
AGREEMENT. Romulo Snyder Agreement
(1950) whereby the Philippine Government
undertook to return to the United States
Government in ten annual installments, a total
of about 35 million dollars advanced by the
United States to, but unexpended by the
National Defense Forces of the Philippines, may
fall under any of these two classes of executive
agreements.
5. ID.; ID.; ID.; ID.; ID.; RATIFICATION OF THE
AGREEMENT. The acts of Congress
appropriating funds for the yearly installments
necessary to comply with the Romulo-Snyder
Agreement, constitute a ratification thereof.

DECISION

BENGZON, J.:

The central issue in this litigation concerns the

validity of the Romulo-Snyder Agreement
undertook to return to the United States
Government in ten annual installments, a total
of about 35-million dollars advanced by the
United States to, but unexpended by, the
National Defense Forces of the Philippines.
In October 1954, the Usaffe Veterans
Associations Inc., hereafter called Usaffe
Veterans, for itself and for many other Filipino
veterans of World War II, ex-members of the
United States Armed Forces in the Far East
(USAF-FE) prayed in its complaint before the
Manila court of first instance that said
Agreement be annulled, that payments
thereunder be declared illegal and that
defendants as officers of the Philippine
Republic be restrained from dibursing any
funds in the National Treasury in pursuance of
said Agreement. Said Usaffe Veterans further
asked that the moneys available, instead of
being remitted to the States, should be turned
overt to the Finance Service of the Armed
Forces of the Philippines for the payment of all
pending claims of the veterans represented by
plaintiff.
The complaint rested on plaintiffs three
porpositions: first, that the funds to be
"returned" under the Agreement were funds
appropriated by the American Congress for the
Philippine Army, actually delivered to the
Philippine Government and actually owned by
the said Government; second, that U.S.
Secretary Snyder of the Treasury, had no
authority to retake such funds from the P.I.
Government; and third, tha Philippine Foreign
Secretary Carlos P. Romulo had no authority to
return or promise to return the aforesaid sums
of money through the so-called Romulo-Snyder
Agreement.

The defendants moved to dismiss, alleging

Governmental immunitu from suit. but the
court required an answer, and then the case on
the merits. Thereafter, it dismissed the
complaint, upheld the validity of the
Agreement and dissolved the preliminary
injunction it had previously issued. The plaintiff
appealed.
On July 26, 1941, foreseeing the War in the
Pacific, President Franklin D. Roosevelt, called
into the serve of the Armed Forces of the
United States, for the duration of the
emergency, all the organized military forces of
the Philippine Commonwealth. His order was
published here by Proclamation No. 740 of
President Quezon on August 10, 1941. In
October 1941, by two special orders, General
Douglas MacArthur, Commanding General of
the United States Army Forces in the Far East
(known as USAFFE) placed under his command
all the Philippine Army units including the
Philippine constabulary, about 100,000 officers
and soldiers.
For the expenses incident to such incorporation
mobilization and activities, the Congress of the
United States provided in its Appropriation Act
of December 17, 1941 (Public Law No. 353,
77th Congress) as
follows:jgc:chanrobles.com.ph
"For all expenses necessary for the mobilization
operation and maintenance of the Army of the
Philippines, including expenses connected with
calling into the service of the service of the
armed forces of the United States the
organized military forces of the Government of
the Commonwealth of the Philippines, . . . but
shall be expended and accounted for in the
manner prescribed by the President of the
United States, $269,000.00; to remain
available until June 30, 1943, which shall be
available for payment to the Government of the
Commonwealth of the Philippines upon its
written request, either in advance of or in

14

reimbursement for all or any parr of the

estimated or actual costs, as authorized by the
Commanding General, United States Army
Forces in the Far Eastm of necessary express
for the purposes aforesaid, . . . (Emphasis
ours.)
In subsequent Acts, the U.S. Congress
approriated moneys in language identical to
the above: $28,313,000.00 for the fiscal year
ending June 30. 1943; and $100,000,000 each
year, for the fiscal years ending June 30, 9144,
June 30, 1945, and June 30, 1946. 1 The last
pertinent appropriation was Public Law No. 301
(79th Congress) Known as the Rescission Act. It
simply set aside 200 million dollars for the
Army of the Philippines for the fiscal years
ending June 30, 1946.
Now, pursuant to the power reserved to him
under Public Law 353 above-quoted, President
Roosevelt issued on January 3, 1942, his
Executive Order No. 9011 prescribing partly as
follows:jgc:chanrobles.com.ph
"2. (a) Necessary expenditures from funds in
the Philippine Treasury for the purposes
authorized by the Act of December 17, 1941,
will be made by disbursing officers of the Army
of the Philippines on the approval of authority
of the Commanding General, United States
Army Forces in the Far East, and such purposes
as he may deem proper and his determination
thereon shall be final and conclusive upon the
accounting officers of the Philippine
Government, and such expenditures will be
accounted for in accordance with procedures
established by Philippine Commonwealth Laws
and regulations." (Emphasis Supplied.)
Out of the total amounts thus appropriated by
the United States Congress as above itemized,
P570,863,000.00 was transferred directly to the
Philippine Armed Forces by means of vouchers
which stated "Advance of Funds under Public
Law 353-77th Congress and Executive Order

No. 9011." this amount was used (mostly) to

discharge in the Philippine Islands the
monetary obligations assumed by the U.S.
Government as a result of the induction of the
Philippine Armed Forces into the U.S. Army, and
of its operations beginning in 1941. Part of
these obligations consisted in the claims of
Filipino USAFFE soldiers for arrears in pay and
in the charges for supplies used by them and
the guerrillas.
Of the millions so transferred, there remained
unexpended and uncommited in the possession
of the Philippine Armed Forces as of December
31, 1949, about 35 million dollars. As at the
time, the Philippine Government badly needed
funds for its activities, President Quirino,
through Government Miguel Cuaderno of the
Central Bank proposed to the corresponding
officials of the U.S Government the retention of
the 35-million dollars as a loan, and for its
repayment inten annual installments. After
protracted negotiations the deal was concluded
and the Romulo-Snyder Agreement was signed
in Washington on November 6, 1950, by the
then Philippine Secretary of Foreign Affairs,
Carlos P. Romulo, and the then American
Secretary of the Treasury, John W. Snyder.
Principal stipulation therein was this
paragraph:jgc:chanrobles.com.ph
"3. The Government of the Republic of the
Philippines further agrees to pay the dollar
amount payable hereunder to the Secretary of
the Treasury of the United States in ten annual
installments, the first nine payments to be in
the amount of $3,500,000.00 and the final
residual payment to be in the amount
determined by deducting the total of the
previous principal payments from the total
amount of dollars to be paid to the Secretary of
the Treasury of the United States, the latter
amount to be determined as provide in Article II
hereof. . . . ."cralaw virtua1aw library

It should be added that the agreement, made

on the basis of the parties belief that $35million was the outstanding balance, provided
in its article II for a audit by appropriate officers
to compute the exact amount due.
In compliance with the Agreement, this
Government has appropriated by law and paid
to the United States up to and including 1954,
yearly installments totalling P33,187.663.24.
There is no reason to doubt that subsequent
budgets failed to make the corresponding
appropriations for other installments.
In this appeal, the Usaffe Veterans reiterated
with extended arguments, their basic
propositions. They insist; first, the money
delivered by the U.S. to the Armed Forces of
the Philippine Island were straight payments for
military services; ownership thereof vested in
the Philippine Government upon delivery, and
consequently, there was nothing to return,
nothing to consider as a loan; and second,the
Romulo-Snyder Agreement was void because
there was no loan to be repaid and because it
was not binding on the Philippine Government
for lack of authority of the officers who
concluded the same.
With regard to the first point, it must be
rememberd that the first Congressional Act of
December 17, 1941 (Public Law No. 353)
appropriating $269-million expressly said the
amount "shall be available for payment to the
Government of the Commonwealth of the
Philippines upon its written request, either in
advance of or in reimbursement for all or any
part of the estimated or actual costs" of
operation, mobilization and maintenance of the
Philippine Army. Note carefully, the money is to
be handed to the Philippine Government either
in advance of expenditures or in
reimbursement thereof. All the voucheres
signed upon recipt of the money state clearly,
"Advance of funds under Public Law 353-7th
Congress and Executive Order No. 9011."

15

In any system of accounting, advances of funds

for expenditures contemplate disbursement to
be reported, and credited if approved, against
such advances the unexpended sums to be
returned later. In fact, the Congressional law
itself required accounting "in the manner
prescribed by the President of the U.S." and
said President in his Executive Order No. 9011,
outlined the procedure whereby advanced
funds shall be accounted for. Furthermore, it
requires as a condition sine qua non that all
expenditures shall first be approved by the
Commanding-General, United States Army
Forces in the Far East.
Now, these ideas of "founds advanced to meet
such expenditures of the Philippine Army as
may be approved by the USAFFE CommandingGeneral, in connection with the requirement of
accounting therefore evidently contradict
appellants to the Phillippine Government for its
aremed services, and passed into the absolute
control of such Government.
In fact, the respective army officers of both
nations, 2 who are presumed to know their
business, have consistently regarded the
money as funds advanced, to be subsequently
accounted for which means submission of
expenditures, and if approved, return of
unexpended balance.
Now then, it is undeniable that upon a final
redition of accounts by the Philippine
Government, a superabit resulted of at least 35
million dollars in favor of the U.S. Instead of
returning such amount in one lump sum, our
Executive Department arranged for its
repayment in ten annual installments. Prima
facie such arrangement should raise no valied
objection, given the obligation to return-which
we know exists.
Yet plaintiff attempts to blocks such repayment
because many alleged claims of veterans have

not been processed and paid, December 31,

1949, having been fixed as the deadline for the
presentation and/or payment of such claims.
Plaintiff obviously calculates that if the return is
prevented and the money kept here, it might
manage to presuade the powers-that-be to
extend the deadline anew. Hence the twopronged attack: (a) no obligation to repay; (b)
the officers who promised to repay had no
authority to bind this Government.
The first ground has proved untenable.
On the second, there is no doubt that President
Quirino approved the negotiations. And he had
power to contract budgetary loans under
Republic Act No. 213, amending Republic Act
No. 16. the most important argument,
however, rests on the lack of ratification of the
Agreement by the Senate of the Philippines to
make it binding on this Government. On this
matter, the defendants explain as
follows:jgc:chanrobles.com.ph
"That the agreement is not a treaty as that
term is used in the Constitution, is conceded.
The agreement was never submitted to Senate
for concurrence (Art. VII, Sect. 10). (7).
However, it must be noted that a treaty is not
the only form that an international agreement
may assumen. For the grant of the treatymaking power to the Executive and the Senate
does not exhaust the power of the government
over international international relation,
Consequently, executive agreements may be
entered into with other states and are effective
even without the concurrence of the Senate
(Sinco, Philippine Political Law, 10th ed., 303;
Tanada and Fernando, Constitution of the
Philippines, 4th ed., Vol. II, 1055). It is observed
in this connection that from the point of view of
international law, there is no difference
between treaties and executive agreements in
their binding effect upon states concerned as
long as the negotiating functionaries have
remained within their powers (dHackworth,

Digest of of International Law, Vol. 5, 395,

citing U.S. v. Belmont, 301 U.S. 342, State of
Russia v. National City Bank of New York, 69 F.
(2d) 44; United States v. Pink, 315 U.S. 203;
Altman & Co., v. United States, 224 U.S. 583.
See also McDougal and Lans, "Treaties and
Executive Agreements 54 Yale Law Journa 181,
381, et seg.; and sinco; Op. cit. 305) The
distinction between so-called executive
agreements and treaties is purely a
constitutional one and has no international
legal significance (Research in International
Law, Draft Convention on the Law of Treaties
(Harvard Law School), Comment, 29 Am. J. Int.)
Law Supp. 653, 897. See also Hackwork, op.
cit. 391).
"There are now various forms of such pacts or
agreements entered into by and between
sovereign states which do not necessarily come
under the strict sense of a treaty and which do
not require ratification or consent of the
legistlative body of the State, but nevertheless,
are consideration valid international
agreements. In a survey of the practice of
States made by Harvard Research in the Draft
Convention in the Law of Treaties (1935, pp.
711-713) it has been shown that there had
been more executive agreements entered into
by States then treaties (Hudson, International
Legislation, I, p. ixii-xcvii).
"In the leading case of Altman v. U.S., 224, U.S.
583, it was sentatives of two sovereign nations
and made in the name and or behalf of the
contracting parties and dealing with important
commercial relations between the two
countries, is a treaty both internationally
although as an executive agreement it is not
technically a treaty requiring the advice and
consent of the Senate. (Herbert Briggs, The
Law of Nations, 1947 ed., p. 489).
"Nature of Executive Agreement"
"Executive Agreements fall into two classes: (1)

16

agreements made purely as executive acts

affecting external relations and independent of
or without legislative authorization, which may
be termed as presidential agreements, and (2)
agreements entered into in pursuance of acts
of Congress, which have been designated as
Congressional-Executive Agreements (Sinco,
supra, 304; Hackworth, supra, 390; McDougal
and lans, supra, 204-205; Hyke, International
Law, 2nd ed., Vol. II, 1406; et seq.)
The Romulo-Snyder Agreement may fall under
any of these two classes, for precisely on
September 18, 1946, Congress of the
Philippines specifically authorized the President
of the Philippines to obtain such loans or incur
such indebtednesss with the Government of
the United States, its agencies or
instrumentalities (Republic Act No. 16,
September 18, 1946, amended by Republic Act
No. 213, June 1, 1948). . . ."cralaw virtua1aw
library

practically admits the validity and binding force

of such Agreement. Furthermore, the acts of
Congress Appropriating funds for the yearly
installments necessary to comply with such
Agreements constitute a ratification thereof,
which places the question of validity out of the
Courts reach, no constitutional principle having
been invoked to restrict Congress plenary
power to appropriate funds loan or no loan.
In conclusion, plaintiff, to say the least, failed
to make a clear case for the relief demanded;
its petition was therefore, propely denied.
Judgment affirmed.
Paras, C.J., Padilla, Montemayor, Bautista
Angelo Labrador, Concepcion, Endencia and
Barrera, JJ., concur.
Judgment affirmed.

"Even granting, arguendo, that there was no

legislative authorization, it is hereby
maintained that the Romulo-Snyder Agreement
was legally and validly entered into to conform
to the second category, namely, agreements
entered into purely as executive acts without
legislative authorization. This second category
ususlly includes money agreements relating to
the settlement of pecuniary claims of citizens.
It may be said that this method of settling such
claims has come to be the usual way of dealing
with matters of this kind (Memorandum of the
Solicitor of the Under-Secretary of State
(Philip), August 23, 1922, MS Dept. of State, file
711.00/98a)."cralaw virtua1aw library
Such considerations seem persuasive; indeed,
the Agreement was not submitted to the U.S.
Senate either; but we do not stop to check the
authorities above listed nor test the
conclusions derived therefrom in order to
render a definite pronouncement, for the
reason that our Senate Resolution No. 15 3

17

vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of
Tax Appeals reversing a decision of the
Commissioner of Customs.
Respondent Eastern Sea Trading was the
consignee of several shipments of onion and
garlic which arrived at the Port of Manila from
August 25 to September 7, 1954. Some
shipments came from Japan and others from
Hong Kong. In as much as none of the
shipments had the certificate required by
Central Bank Circulars Nos. 44 and 45 for the
release thereof, the goods thus imported were
seized and subjected to forfeiture proceedings
for alleged violations of section 1363(f) of the
Revised Administrative Code, in relation to the
aforementioned circulars of the Central Bank.
In due course, the Collector of Customs of
Manila rendered a decision on September 4,
1956, declaring said goods forfeited to the
Government and the goods having been, in
the meantime, released to the consignees on
surety bonds, filed by the same, as principal,
and the Alto Surety & Insurance Co., Inc., as
surety, in compliance with orders of the Court
of First Instance of Manila, in Civil Cases Nos.
23942 and 23852 thereof directing that the
amounts of said bonds be paid, by said
principal and surety, jointly and severally, to
the Bureau of Customs, within thirty (30) days
from notice.

G.R. No. L-14279

October 31, 1961

THE COMMISSIONER OF CUSTOMS and

THE COLLECTOR OF CUSTOMS, petitioners,

On appeal taken by the consignee, said

decision was affirmed by the Commissioner of
Customs on December 27, 1956. Subsequently,
the consignee sought a review of the decision
of said two (2) officers by the Court of Tax
Appeals, which reversed the decision of the
Commissioner of Customs and ordered that the

aforementioned bonds be cancelled and

withdrawn. Hence, the present petition of the
Commissioner of Customs for review of the
decision of the Court of Tax Appeals.
The latter is based upon the following
premises, namely: that the Central Bank has no
authority to regulate transactions not involving
foreign exchange; that the shipments in
question are in the nature of "no-dollar"
imports; that, as such, the aforementioned
shipments do not involve foreign exchange;
that, insofar as a Central Bank license and a
certificate authorizing the importation or
release of the goods under consideration are
required by Central Bank Circulars Nos. 44 and
45, the latter are null and void; and that the
seizure and forfeiture of the goods imported
from Japan cannot be justified under Executive
Order No. 328,1 not only because the same
seeks to implement an executive
agreement2 extending the effectivity of
our3 Trades and Financial Agreements4 with
Japan which (executive agreement), it
believed, is of dubious validity, but, also,
because there is no governmental agency
authorized to issue the import license required
by the aforementioned executive order.
The authority of the Central Bank to regulate
no-dollar imports and the validity of the
aforementioned Circulars Nos. 44, and 45 have
already been passed upon and repeatedly
upheld by this Court (Pascual vs. Commissioner
of Customs, L-10979 [June 30, 1959]; Acting
Commissioner of Customs vs. Leuterio, L-9142
[October 17, 1959] Commissioner of Customs
vs. Pascual, L-9836 [November 18, 1959];
Commissioner of Customs vs. Serree
Investment Co., L-12007 [May 16, 1960];
Commissioner of Customs vs. Serree
Investment Co., L-14274 [November 29,
1960]), for the reason that the broad powers of
the Central Bank, under its charter, to maintain
our monetary stability and to preserve the
international value of our currency, under
section 2 of Republic Act No. 265, in relation to

18

section 14 of said Act authorizing the bank

to issue such rules and regulations as it may
consider necessary for the effective discharge
of the responsibilities and the exercise of the
powers assigned to the Monetary Board and to
the Central Bank connote the authority to
regulate no-dollar imports, owing to the
influence and effect that the same may and do
have upon the stability of our peso and its
international value.
The Court of Tax Appeals entertained doubts on
the legality of the executive agreement sought
to be implemented by Executive Order No. 328,
owing to the fact that our Senate had not
concurred in the making of said executive
agreement. The concurrence of said House of
Congress is required by our fundamental law in
the making of "treaties" (Constitution of the
Philippines, Article VII, Section 10[7]), which
are, however, distinct and different from
"executive agreements," which may be validly
entered into without such concurrence.
Treaties are formal documents which require
ratification with the approval of two thirds of
the Senate. Executive agreements become
binding through executive action without the
need of a vote by the Senate or by Congress.
xxx

xxx

xxx

. . . the right of the Executive to enter into

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

xxx

xxx

Agreements with respect to the registration of

trade-marks have been concluded by the
Executive with various countries under the Act
of Congress of March 3, 1881 (21 Stat. 502).
Postal conventions regulating the reciprocal
treatment of mail matters, money orders,
parcel post, etc., have been concluded by the
Postmaster General with various countries
under authorization by Congress beginning
with the Act of February 20, 1792 (1 Stat. 232,
239). Ten executive agreements were
concluded by the President pursuant to the
McKinley Tariff Act of 1890 (26 Stat. 567, 612),
and nine such agreements were entered into
under the Dingley Tariff Act 1897 (30 Stat. 151,
203, 214). A very much larger number of
agreements, along the lines of the one with
Rumania previously referred to, providing for
most-favored-nation treatment in customs and
related matters have been entered into since
the passage of the Tariff Act of 1922, not by
direction of the Act but in harmony with it.
xxx

xxx

xxx

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.
xxx

xxx

xxx

Furthermore, the United States Supreme Court

has expressly recognized the validity and
constitutionality of executive agreements
entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also,
U.S. vs. Curtis-Wright Export Corporation, 299
U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301
U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S.
203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d.

288; Yale Law Journal, Vol. 15, pp. 1905-1906;

California Law Review, Vol. 25, pp. 670-675;
Hyde on International Law [Revised Edition],
Vol. 2, pp. 1405, 1416-1418; Willoughby on the
U.S. Constitutional Law, Vol. I [2d ed.], pp. 537540; Moore, International Law Digest, Vol. V,
pp. 210-218; Hackworth, International Law
Digest, Vol. V, pp. 390-407). (Emphasis
supplied.)
In this connection, Francis B. Sayre, former U.S.
High Commissioner to the Philippines, said in
his work on "The Constitutionality of Trade
Agreement Acts":
Agreements concluded by the President which
fall short of treaties are commonly referred to
as executive agreements and are no less
common in our scheme of government than are
the more formal instruments treaties and
conventions. They sometimes take the form of
exchanges of notes and at other times that of
more formal documents denominated
"agreements" time or "protocols". The point
where ordinary correspondence between this
and other governments ends and agreements
whether denominated executive agreements
or exchanges of notes or otherwise begin,
may sometimes be difficult of ready
ascertainment. It would be useless to
undertake to discuss here the large variety of
executive agreements as such, concluded from
time to time. Hundreds of executive
agreements, other than those entered into
under the trade-agreements act, have been
negotiated with foreign governments. . . . It
would seem to be sufficient, in order to show
that the trade agreements under the act of
1934 are not anomalous in character, that they
are not treaties, and that they have abundant
precedent in our history, to refer to certain
classes of agreements heretofore entered into
by the Executive without the approval of the
Senate. They cover such subjects as the
inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil
aircraft, customs matters, and commercial

19

relations generally, international claims, postal

matters, the registration of trademarks and
copyrights, etcetera. Some of them were
concluded not by specific congressional
authorization but in conformity with policies
declared in acts of Congress with respect to the
general subject matter, such as tariff acts;
while still others, particularly those with
respect of the settlement of claims against
foreign governments, were concluded
independently of any legislation." (39 Columbia
Law Review, pp. 651, 755.)

WHEREFORE, the decision appealed from is

hereby reversed and another one shall be
entered affirming that of the Commissioner of
Customs, with cost against respondents
defendant-appellee, Eastern Sea Trading. It is
so ordered.

The validity of the executive agreement in

question is thus patent. In fact, the so-called
Parity Rights provided for in the Ordinance
Appended to our Constitution were, prior
thereto, the subject of an executive agreement,
madewithout the concurrence of two-thirds
(2/3) of the Senate of the United States.
Lastly, the lower court held that it would be
unreasonable to require from respondentappellee an import license when the Import
Control Commission was no longer in existence
and, hence, there was, said court believed, no
agency authorized to issue the aforementioned
license. This conclusion is untenable, for the
authority to issue the aforementioned licenses
was not vested exclusively upon the Import
Control Commission or Administration.
Executive Order No. 328 provided for export or
import licenses "from the Central Bank of the
Philippines or the Import Control
Administration" or Commission. Indeed, the
latter was created only to perform the task of
implementing certain objectives of the
Monetary Board and the Central Bank, which
otherwise had to be undertaken by these two
(2) agencies. Upon the abolition of said
Commission, the duty to provide means and
ways for the accomplishment of said objectives
had merely to be discharged directly by the
Monetary Board and the Central Bank, even if
the aforementioned Executive Order had been
silent thereon.

20

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

[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a
JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina
Independiente), BISHOP ELMER BOLOCAN
(United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG
MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW
CENTER, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, FOREIGN
AFFAIRS SECRETARY DOMINGO SIAZON,
DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER
AGUIRRE, SENATE PRESIDENT MARCELO
FERNAN, SENATOR FRANKLIN DRILON,
SENATOR BLAS OPLE, SENATOR RODOLFO
BIAZON, and SENATOR FRANCISCO TATAD,
respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION,
INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners,
vs. HON. RONALDO B. ZAMORA, as
Executive Secretary, HON. ORLANDO
MERCADO, as Secretary of National
Defense, and HON. DOMINGO L. SIAZON,
JR., as Secretary of Foreign
Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S.
ROCO, and SERGIO R. OSMEA
III, petitioners, vs. JOSEPH E. ESTRADA,
RONALDO B. ZAMORA, DOMINGO L.
SIAZON, JR., ORLANDO B. MERCADO,
MARCELO B. FERNAN, FRANKLIN M.
DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

INTEGRATED BAR OF THE PHILIPPINES,

Represented by its National President,
Jose Aguila Grapilon, petitioners,
vs. JOSEPH EJERCITO ESTRADA, in his
capacity as President, Republic of the
Philippines, and HON. DOMINGO SIAZON,
in his capacity as Secretary of Foreign
Affairs,respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA,
ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO,
JOKER P. ARROYO, FRANCISCO C. RIVERA
JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE,
SENATE PRESIDENT MARCELO B. FERNAN,
SENATOR BLAS F. OPLE, SENATOR
RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE
VISITING FORCES AGREEMENT
(VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the
instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by,
an agreement forged in the turn of the last
century between the Republic of the Philippines
and the United States of America -the Visiting
Forces Agreement.
The antecedents unfold.

On March 14, 1947, the Philippines and the

United States of America forged a Military
Bases Agreement which formalized, among
others, the use of installations in the Philippine
territory by United States military personnel. To
further strengthen their defense and security
relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties
agreed to respond to any external armed
attack on their territory, armed forces, public
vessels, and aircraft.[1]
In view of the impending expiration of the RPUS Military Bases Agreement in 1991, the
Philippines and the United States negotiated
for a possible extension of the military bases
agreement. On September 16, 1991, the
Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the
presence of US military bases in the
Philippines.[2] With the expiration of the RP-US
Military Bases Agreement, the periodic military
exercises conducted between the two countries
were held in abeyance. Notwithstanding, the
defense and security relationship between the
Philippines and the United States of America
continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel,
headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met
with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to
exchange notes on the complementing
strategic interests of the United States and the
Philippines in the Asia-Pacific region. Both sides
discussed, among other things, the possible
elements of the Visiting Forces Agreement (VFA
for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in
turn resulted to a final series of conferences
and negotiations[3] that culminated in Manila on
January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA,

21

which was respectively signed by public

respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10,
1998.

personnel may be present in the Philippines,

and is quoted in its full text, hereunder:

Philippines in connection with activities covered

by this agreement.

Article I

On October 5, 1998, President Joseph E.

Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]

Definitions

2. United States military personnel shall be

exempt from passport and visa regulations
upon entering and departing the Philippines.

On October 6, 1998, the President, acting

through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the
Senate of the Philippines,[5] the Instrument of
Ratification, the letter of the President[6] and
the VFA, for concurrence pursuant to Section
21, Article VII of the 1987 Constitution. The
Senate, in turn, referred the VFA to its
Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on
National Defense and Security, chaired by
Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter,
joint public hearings were held by the two
Committees.[7]
On May 3, 1999, the Committees submitted
Proposed Senate Resolution No.
443[8] recommending the concurrence of the
Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its
implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution
No. 443 was approved by the Senate, by a twothirds (2/3) vote[9] of its members. Senate
Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into
force after an Exchange of Notes between
respondent Secretary Siazon and United States
Ambassador Hubbard.
The VFA, which consists of a Preamble and nine
(9) Articles, provides for the mechanism for
regulating the circumstances and conditions
under which US Armed Forces and defense

As used in this Agreement, United States

personnel means United States military and
civilian personnel temporarily in the Philippines
in connection with activities approved by the
Philippine Government.
Within this definition:
1. The term military personnel refers to military
members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to
individuals who are neither nationals of, nor
ordinary residents in the Philippines and who
are employed by the United States armed
forces or who are accompanying the United
States armed forces, such as employees of the
American Red Cross and the United Services
Organization.
Article II
Respect for Law
It is the duty of the United States personnel to
respect the laws of the Republic of the
Philippines and to abstain from any activity
inconsistent with the spirit of this agreement,
and, in particular, from any political activity in
the Philippines. The Government of the United
States shall take all measures within its
authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall
facilitate the admission of United States
personnel and their departure from the

3. The following documents only, which shall be

presented on demand, shall be required in
respect of United States military personnel who
enter the Philippines:
(a) personal identity card issued by the
appropriate United States authority showing
full name, date of birth, rank or grade and
service number (if any), branch of service and
photograph;
(b) individual or collective document issued by
the appropriate United States authority,
authorizing the travel or visit and identifying
the individual or group as United States military
personnel; and
(c) the commanding officer of a military aircraft
or vessel shall present a declaration of health,
and when required by the cognizant
representative of the Government of the
Philippines, shall conduct a quarantine
inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft
or United States vessels or cargoes thereon
shall be conducted by the United States
commanding officer in accordance with the
international health regulations as promulgated
by the World Health Organization, and mutually
agreed procedures.
4. United States civilian personnel shall be
exempt from visa requirements but shall
present, upon demand, valid passports upon
entry and departure of the Philippines.
5. If the Government of the Philippines has
requested the removal of any United States
personnel from its territory, the United States
authorities shall be responsible for receiving

22

the person concerned within its own territory or

otherwise disposing of said person outside of
the Philippines.

(c) For the purposes of this paragraph and

paragraph 3 of this article, an offense relating
to security means:

Article IV

(1) treason;

Driving and Vehicle Registration

(2) sabotage, espionage or violation of any law

relating to national defense.

1. Philippine authorities shall accept as valid,

without test or fee, a driving permit or license
issued by the appropriate United States
authority to United States personnel for the
operation of military or official vehicles.
2. Vehicles owned by the Government of the
United States need not be registered, but shall
have appropriate markings.
Article V

3. In cases where the right to exercise

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

1. Subject to the provisions of this article:

(b) United States military authorities shall have

the primary right to exercise jurisdiction over
United States personnel subject to the military
law of the United States in relation to.

(a) Philippine authorities shall have jurisdiction

over United States personnel with respect to
offenses committed within the Philippines and
punishable under the law of the Philippines.

(1) offenses solely against the property or

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

(b) United States military authorities shall have

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

(2) offenses arising out of any act or omission

done in performance of official duty.

Criminal Jurisdiction

2. (a) Philippine authorities exercise exclusive

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

(c) The authorities of either government may

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

the Philippine authorities receive the United

States request.
(e) When the United States military
commander determines that an offense
charged by authorities of the Philippines
against United states personnel arises out of an
act or omission done in the performance of
official duty, the commander will issue a
certificate setting forth such determination.
This certificate will be transmitted to the
appropriate authorities of the Philippines and
will constitute sufficient proof of performance
of official duty for the purposes of paragraph
3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the
circumstances of the case require a review of
the duty certificate, United States military
authorities and Philippine authorities shall
consult immediately. Philippine authorities at
the highest levels may also present any
information bearing on its validity. United
States military authorities shall take full
account of the Philippine position. Where
appropriate, United States military authorities
will take disciplinary or other action against
offenders in official duty cases, and notify the
Government of the Philippines of the actions
taken.
(f) If the government having the primary right
does not exercise jurisdiction, it shall notify the
authorities of the other government as soon as
possible.
(g) The authorities of the Philippines and the
United States shall notify each other of the
disposition of all cases in which both the
authorities of the Philippines and the United
States have the right to exercise jurisdiction.
4. Within the scope of their legal competence,
the authorities of the Philippines and United
States shall assist each other in the arrest of
United States personnel in the Philippines and
in handling them over to authorities who are to

23

exercise jurisdiction in accordance with the

provisions of this article.

cases, the delivery of objects connected with

an offense.

5. United States military authorities shall

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

8. When United States personnel have been

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

6. The custody of any United States personnel

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

9. When United States personnel are detained,

taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all
procedural safeguards established by the law
of the Philippines. At the minimum, United
States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the
specific charge or charges made against them
and to have reasonable time to prepare a
defense;
(c) To be confronted with witnesses against
them and to cross examine such witnesses;
(d) To present evidence in their defense and to
have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal
representation of their own choice on the same
basis as nationals of the Philippines;
(f) To have the service of a competent
interpreter; and
(g) To communicate promptly with and to be
visited regularly by United States authorities,

and to have such authorities present at all

judicial proceedings. These proceedings shall
be public unless the court, in accordance with
Philippine laws, excludes persons who have no
role in the proceedings.
10. The confinement or detention by Philippine
authorities of United States personnel shall be
carried out in facilities agreed on by
appropriate Philippine and United States
authorities. United States Personnel serving
sentences in the Philippines shall have the right
to visits and material assistance.
11. United States personnel shall be subject to
trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the
jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements,
including United States foreign military sales
letters of offer and acceptance and leases of
military equipment, both governments waive
any and all claims against each other for
damage, loss or destruction to property of each
others armed forces or for death or injury to
their military and civilian personnel arising
from activities to which this agreement applies.
2. For claims against the United States, other
than contractual claims and those to which
paragraph 1 applies, the United States
Government, in accordance with United States
law regarding foreign claims, will pay just and
reasonable compensation in settlement of
meritorious claims for damage, loss, personal
injury or death, caused by acts or omissions of
United States personnel, or otherwise incident
to the non-combat activities of the United
States forces.
Article VII

24

Importation and Exportation

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

1. Aircraft operated by or for the United States

armed forces may enter the Philippines upon
approval of the Government of the Philippines
in accordance with procedures stipulated in
implementing arrangements.

VFA and impute to herein respondents grave

abuse of discretion in ratifying the agreement.

2. Vessels operated by or for the United States

armed forces may enter the Philippines upon
approval of the Government of the Philippines.
The movement of vessels shall be in
accordance with international custom and
practice governing such vessels, and such
agreed implementing arrangements as
necessary.

3. Vehicles, vessels, and aircraft operated by or

for the United States armed forces shall not be
subject to the payment of landing or port fees,
navigation or over flight charges, or tolls or
other use charges, including light and harbor
dues, while in the Philippines. Aircraft operated
by or for the United States armed forces shall
observe local air traffic control regulations
while in the Philippines. Vessels owned or
operated by the United States solely on United
States Government non-commercial service
shall not be subject to compulsory pilotage at
Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the
date on which the parties have notified each
other in writing through the diplomatic channel
that they have completed their constitutional
requirements for entry into force. This
agreement shall remain in force until the
expiration of 180 days from the date on which
either party gives the other party notice in
writing that it desires to terminate the
agreement.
Via these consolidated[11] petitions for certiorari
and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and
taxpayers - assail the constitutionality of the

We have simplified the issues raised by the

petitioners into the following:

Do petitioners have legal standing as

concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of
Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of
Philippine sovereignty?
a. Are Philippine courts deprived of their
jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its
jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1,
Article III of the Constitution?
b. the Prohibition against nuclear weapons
under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution
granting the exemption from taxes and duties
for the equipment, materials supplies and other
properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed
Forces?
LOCUS STANDI

25

At the outset, respondents challenge

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

and that he will sustain a direct injury as a

result of the enforcement of the questioned
statute or contract. It is not sufficient that he
has merely a general interest common to all
members of the public.
Clearly, inasmuch as no public funds raised by
taxation are involved in this case, and in the
absence of any allegation by petitioners that
public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no
legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada,
Agapito Aquino and Joker Arroyo, as petitionerslegislators, do not possess the requisite locus
standi to maintain the present suit. While this
Court, in Phil. Constitution Association vs.
Hon. Salvador Enriquez,[18] sustained the
legal standing of a member of the Senate and
the House of Representatives to question the
validity of a presidential veto or a condition
imposed on an item in an appropriation bull, we
cannot, at this instance, similarly uphold
petitioners standing as members of Congress,
in the absence of a clear showing of any direct
injury to their person or to the institution to
which they belong.
Beyond this, the allegations of impairment of
legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are
more apparent than real. While it may be true
that petitioners pointed to provisions of the VFA
which allegedly impair their legislative powers,
petitioners failed however to sufficiently show
that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of
the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor
General, the IBP lacks the legal capacity to
bring this suit in the absence of a board
resolution from its Board of Governors
authorizing its National President to commence
the present action.[19]

Notwithstanding, in view of the paramount

importance and the constitutional significance
of the issues raised in the petitions, this Court,
in the exercise of its sound discretion, brushes
aside the procedural barrier and takes
cognizance of the petitions, as we have done in
the early Emergency Powers Cases,
[20]
where we had occasion to rule:
x x x ordinary citizens and taxpayers were
allowed to question the constitutionality of
several executive orders issued by President
Quirino although they were involving only an
indirect and general interest shared in common
with the public. The Court dismissed the
objection that they were not proper parties and
ruled that transcendental importance to
the public of these cases demands that
they be settled promptly and definitely,
brushing aside, if we must, technicalities
of procedure. We have since then applied the
exception in many other cases. (Association of
Small Landowners in the Philippines, Inc. v.
Sec. of Agrarian Reform, 175 SCRA 343).
(Underscoring Supplied)
This principle was reiterated in the subsequent
cases of Gonzales vs. COMELEC,[21] Daza vs.
Singson,[22] and Basco vs. Phil. Amusement
and Gaming Corporation,[23] where we
emphatically held:
Considering however the importance to the
public of the case at bar, and in keeping with
the Courts duty, under the 1987 Constitution,
to determine whether or not the other
branches of the government have kept
themselves within the limits of the Constitution
and the laws and that they have not abused
the discretion given to them, the Court has
brushed aside technicalities of procedure and
has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan
vs. Guingona, Jr.,[24] thisCourt ruled that in
cases of transcendental importance, the Court
may relax the standing requirements and

26

allow a suit to prosper even where there

is no direct injury to the party claiming
the right of judicial review.
Although courts generally avoid having to
decide a constitutional question based on the
doctrine of separation of powers, which enjoins
upon the departments of the government a
becoming respect for each others acts,[25] this
Court nevertheless resolves to take cognizance
of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is

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

senate and, when the Congress so requires,

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

Section 25, Article XVIII, provides:

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.

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

It is our considered view that both

constitutional provisions, far from contradicting
each other, actually share some common
ground. These constitutional provisions both
embody phrases in the negative and thus, are
deemed prohibitory in mandate and

The 1987 Philippine Constitution contains two

provisions requiring the concurrence of the
Senate on treaties or international
agreements. Section 21, Article VII, which
herein respondents invoke, reads:
No treaty or international agreement shall be
valid and effective unless concurred in by at
least two-thirds of all the Members of the
Senate.

character. In particular, Section 21 opens with

the clause No treaty x x x, and Section 25
contains the phrase shall not be
allowed. Additionally, in both instances, the
concurrence of the Senate is indispensable to
render the treaty or international agreement
valid and effective.
To our mind, the fact that the President referred
the VFA to the Senate under Section 21, Article
VII, and that the Senate extended its
concurrence under the same provision, is
immaterial. For in either case, whether under
Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to
comply with the strict constitutional
requirements.
On the whole, the VFA is an agreement which
defines the treatment of United States troops
and personnel visiting the Philippines. It
provides for the guidelines to govern such visits
of military personnel, and further defines the
rights of the United States and the Philippine
government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment,
materials and supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply
in the instant case. To a certain extent and in a
limited sense, however, the provisions of
section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of
determining the number of votes required to
obtain the valid concurrence of the Senate, as
will be further discussed hereunder.
It is a finely-imbedded principle in statutory
construction that a special provision or law
prevails over a general one. Lex specialis
derogat generali. Thus, where there is in the
same statute a particular enactment and also a
general one which, in its most comprehensive

27

sense, would include what is embraced in the

former, the particular enactment must be
operative, and the general enactment must be
taken to affect only such cases within its
general language which are not within the
provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate
Court,[27] we enunciated:
x x x that another basic principle of statutory
construction mandates that general legislation
must give way to a special legislation on the
same subject, and generally be so interpreted
as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo vs.
de los Angeles, 96 SCRA 139), that a specific
statute prevails over a general statute (De
Jesus vs. People, 120 SCRA 760) and that
where two statutes are of equal theoretical
application to a particular case, the one
designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section
25, Article XVIII is inapplicable to mere
transient agreements for the reason that there
is no permanent placing of structure for the
establishment of a military base. On this score,
the Constitution makes no distinction between
transient and permanent. Certainly, we find
nothing in Section 25, Article XVIII that
requiresforeign troops or facilities to be
stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermenuetics that
when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit
nec nos distinguire debemos.
In like manner, we do not subscribe to the
argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but
merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said
constitutional provision reveals that the

proscription covers foreign military bases,

troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops
and facilities without any foreign bases being
established. The clause does not refer
to foreign military bases,
troops, or facilities collectively but treats them
as separate and independent subjects. The use
of comma and the disjunctive word or clearly
signifies disassociation and independence of
one thing from the others included in the
enumeration,[28]such that, the provision
contemplates three different situations - a
military treaty the subject of which could be
either (a) foreign bases, (b) foreign troops, or
(c) foreign facilities - any of the three standing
alone places it under the coverage of Section
25, Article XVIII.
To this end, the intention of the framers of the
Charter, as manifested during the deliberations
of the 1986 Constitutional Commission, is
consistent with this interpretation:
MR. MAAMBONG. I just want to address a
question or two to Commissioner Bernas.
This formulation speaks of three things: foreign
military bases, troops or facilities. My first
question is: If the country does enter into
such kind of a treaty, must it cover the
three-bases, troops or facilities-or could
the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only
one. Whether it covers only one or it
covers three, the requirement will be the
same.
MR. MAAMBONG. In other words, the
Philippine government can enter into a
treaty covering not bases but merely
troops?
FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why

the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch
our imagination a little bit more, we will find
some. We just want to cover everything.
[29]
(Underscoring Supplied)
Moreover, military bases established within the
territory of another state is no longer viable
because of the alternatives offered by new
means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea
vessels that can stay afloat in the sea even for
months and years without returning to their
home country. These military warships are
actually used as substitutes for a land-home
base not only of military aircraft but also of
military personnel and facilities. Besides,
vessels are mobile as compared to a landbased military headquarters.
At this juncture, we shall then resolve the issue
of whether or not the requirements of Section
25 were complied with when the Senate gave
its concurrence to the VFA.
Section 25, Article XVIII disallows foreign
military bases, troops, or facilities in the
country, unless the following conditions are
sufficiently met, viz: (a) it must be under
a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so
required by congress, ratified by a majority of
the votes cast by the people in a national
referendum; and (c) recognized as a
treaty by the other contracting state.
There is no dispute as to the presence of the
first two requisites in the case of the VFA. The
concurrence handed by the Senate through
Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under
the general requirement in Section 21, Article
VII, or the specific mandate mentioned in
Section 25, Article XVIII, the provision in the

28

latter article requiring ratification by a majority

of the votes cast in a national referendum
being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article
VII particularly requires that a treaty or
international agreement, to be valid and
effective, must be concurred in by at least
two-thirds of all the members of the
Senate. On the other hand, Section 25, Article
XVIII simply provides that the treaty be duly
concurred in by the Senate.
Applying the foregoing constitutional
provisions, a two-thirds vote of all the members
of the Senate is clearly required so that the
concurrence contemplated by law may be
validly obtained and deemed present. While it
is true that Section 25, Article XVIII requires,
among other things, that the treaty-the VFA, in
the instant case-be duly concurred in by the
Senate, it is very true however that said
provision must be related and viewed in light of
the clear mandate embodied in Section 21,
Article VII, which in more specific terms,
requires that the concurrence of a treaty, or
international agreement, be made by a two
-thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must
not be treated in isolation to section 21, Article,
VII.
As noted, the concurrence requirement under
Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article
VII. In a more particular language, the
concurrence of the Senate contemplated under
Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate
favorably vote to concur with the treaty-the
VFA in the instant case.
Under these circumstances, the charter
provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of
doubt, two-thirds (2/3) of this figure, or not less

than sixteen (16) members, favorably acting on

the proposal is an unquestionable compliance
with the requisite number of votes mentioned
in Section 21 of Article VII. The fact that there
were actually twenty-three (23) incumbent
Senators at the time the voting was made,
[31]
will not alter in any significant way the
circumstance that more than two-thirds of the
members of the Senate concurred with the
proposed VFA, even if the two-thirds vote
requirement is based on this figure of actual
members (23). In this regard, the fundamental
law is clear that two-thirds of the 24 Senators,
or at least 16 favorable votes, suffice so as to
render compliance with the strict constitutional
mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites
prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on
the requirement that the VFA should be
recognized as a treaty by the United States of
America.
Petitioners content that the phrase recognized
as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the
advice and consent of the United States Senate
pursuant to its own constitutional process, and
that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter
of United States Ambassador Hubbard stating
that the VFA is binding on the United States
Government is conclusive, on the point that the
VFA is recognized as a treaty by the United
States of America. According to respondents,
the VFA, to be binding, must only be accepted
as a treaty by the United States.
This Court is of the firm view that the
phrase recognized as a treaty means that
the other contracting party accepts or
acknowledges the agreement as a treaty.
[32]
To require the other contracting state, the

United States of America in this case, to

submit the VFA to the United States Senate for
concurrence pursuant to its Constitution,[33] is
to accord strict meaning to the phrase.
Well-entrenched is the principle that the words
used in the Constitution are to be given their
ordinary meaning except where technical terms
are employed, in which case the significance
thus attached to them prevails. Its language
should be understood in the sense they have in
common use.[34]
Moreover, it is inconsequential whether the
United States treats the VFA only as an
executive agreement because, under
international law, an executive agreement is as
binding as a treaty.[35] To be sure, as long as the
VFA possesses the elements of an agreement
under international law, the said agreement is
to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention
on the Law of Treaties, is an international
instrument concluded between States in
written form and governed by international law,
whether embodied in a single instrument or in
two or more related instruments, and whatever
its particular designation.[36] There are many
other terms used for a treaty or international
agreement, some of which are: act, protocol,
agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes,
pact, statute, charter and modus vivendi. All
writers, from Hugo Grotius onward, have
pointed out that the names or titles of
international agreements included under the
general term treaty have little or no legal
significance. Certain terms are useful, but they
furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides
that the provisions of paragraph 1 regarding
the use of terms in the present Convention are
without prejudice to the use of those terms, or
to the meanings which may be given to them in
the internal law of the State.

29

Thus, in international law, there is no difference

between treaties and executive agreements in
their binding effect upon states concerned, as
long as the negotiating functionaries have
remained within their powers.[38] International
law continues to make no distinction between
treaties and executive agreements: they are
equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the
binding effect of executive agreements even
without the concurrence of the Senate or
Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to
pronounce:
x x x the right of the Executive to enter into
binding agreements without the necessity of
subsequent congressional approval has
been confirmed by long usage. From the
earliest days of our history we have entered
into executive agreements covering such
subjects as commercial and consular relations,
most-favored-nation rights, patent rights,
trademark and copyright protection, postal and
navigation arrangements and the settlement of
claims. The validity of these has never been
seriously questioned by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court
has expressly recognized the validity and
constitutionality of executive agreements
entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See,
also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255;
U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L.
ed. 796; Ozanic vs. U.S. 188 F. 2d. 288;
Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670675; Hyde on International Law [revised
Edition], Vol. 2, pp. 1405, 1416-1418;
willoughby on the U.S. Constitution Law,
Vol. I [2d ed.], pp. 537-540; Moore,

International Law Digest, Vol. V, pp. 210218; Hackworth, International Law Digest,
Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours)
The deliberations of the Constitutional
Commission which drafted the 1987
Constitution is enlightening and highlyinstructive:
MR. MAAMBONG. Of course it goes without
saying that as far as ratification of the other
state is concerned, that is entirely their concern
under their own laws.
FR. BERNAS. Yes, but we will accept whatever
they say. If they say that we have done
everything to make it a treaty, then as far as
we are concerned, we will accept it as a treaty.
[41]

The records reveal that the United States

Government, through Ambassador Thomas C.
Hubbard, has stated that the United States
government has fully committed to living up to
the terms of the VFA.[42] For as long as the
united States of America accepts or
acknowledges the VFA as a treaty, and binds
itself further to comply with its obligations
under the treaty, there is indeed marked
compliance with the mandate of the
Constitution.
Worth stressing too, is that the ratification, by
the President, of the VFA and the concurrence
of the Senate should be taken as a clear an
unequivocal expression of our nations consent
to be bound by said treaty, with the
concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive
act, undertaken by the head of the state or of
the government, as the case may be, through
which the formal acceptance of the treaty is
proclaimed.[43] A State may provide in its
domestic legislation the process of ratification
of a treaty. The consent of the State to be

bound by a treaty is expressed by ratification

when: (a) the treaty provides for such
ratification, (b) it is otherwise established that
the negotiating States agreed that ratification
should be required, (c) the representative of
the State has signed the treaty subject to
ratification, or (d) the intention of the State to
sign the treaty subject to ratification appears
from the full powers of its representative, or
was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested
in the President and not, as commonly
believed, in the legislature. The role of the
Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification.
[45]

With the ratification of the VFA, which is

equivalent to final acceptance, and with the
exchange of notes between the Philippines and
the United States of America, it now becomes
obligatory and incumbent on our part, under
the principles of international law, to be bound
by the terms of the agreement. Thus, no less
than Section 2, Article II of the Constitution,
[46]
declares that the Philippines adopts the
generally accepted principles of international
law as part of the law of the land and adheres
to the policy of peace, equality, justice,
freedom, cooperation and amity with all
nations.
As a member of the family of nations, the
Philippines agrees to be bound by generally
accepted rules for the conduct of its
international relations. While the international
obligation devolves upon the state and not
upon any particular branch, institution, or
individual member of its government, the
Philippines is nonetheless responsible for
violations committed by any branch or
subdivision of its government or any official
thereof. As an integral part of the community of
nations, we are responsible to assure that our
government, Constitution and laws will carry
out our international obligation.[47] Hence, we

30

cannot readily plead the Constitution as a

convenient excuse for non-compliance with our
obligations, duties and responsibilities under
international law.
Beyond this, Article 13 of the Declaration of
Rights and Duties of States adopted by the
International Law Commission in 1949
provides: Every State has the duty to carry out
in good faith its obligations arising from
treaties and other sources of international law,
and it may not invoke provisions in its
constitution or its laws as an excuse for failure
to perform this duty.[48]
Equally important is Article 26 of the
convention which provides that Every treaty in
force is binding upon the parties to it and must
be performed by them in good faith. This is
known as the principle of pacta sunt
servanda which preserves the sanctity of
treaties and have been one of the most
fundamental principles of positive international
law, supported by the jurisprudence of
international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in

effect, is heavily faulted for exercising a power
and performing a task conferred upon him by
the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule
65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of
discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the
Senate pursuant to the provisions of Section
21, Article VII of the Constitution.
On this particular matter, grave abuse of
discretion implies such capricious and
whimsical exercise of judgment as is equivalent
to lack of jurisdiction, or, when the power is
exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it
must be so patent and gross as to amount to

an evasion of positive duty enjoined or to act at

all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature
of his office, the President, as head of State, is
the sole organ and authority in the external
affairs of the country. In many ways, the
President is the chief architect of the nations
foreign policy; his dominance in the field of
foreign relations is (then) conceded.[51] Wielding
vast powers an influence, his conduct in the
external affairs of the nation, as Jefferson
describes, is executive altogether."[52]
As regards the power to enter into treaties or
international agreements, the Constitution
vests the same in the President, subject only to
the concurrence of at least two-thirds vote of
all the members of the Senate. In this light, the
negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts
which pertain solely to the President, in the
lawful exercise of his vast executive and
diplomatic powers granted him no less than by
the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.
[53]
Consequently, the acts or judgment calls of
the President involving the VFA-specifically the
acts of ratification and entering into a treaty
and those necessary or incidental to the
exercise of such principal acts - squarely fall
within the sphere of his constitutional powers
and thus, may not be validly struck down,
much less calibrated by this Court, in the
absence of clear showing of grave abuse of
power or discretion.
It is the Courts considered view that the
President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted
within the confines and limits of the powers
vested in him by the Constitution. It is of no
moment that the President, in the exercise of
his wide latitude of discretion and in the honest
belief that the VFA falls within the ambit of
Section 21, Article VII of the Constitution,

referred the VFA to the Senate for concurrence

under the aforementioned provision. Certainly,
no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may
be imputed to the President in his act of
ratifying the VFA and referring the same to the
Senate for the purpose of complying with the
concurrence requirement embodied in the
fundamental law. In doing so, the President
merely performed a constitutional task and
exercised a prerogative that chiefly pertains to
the functions of his office. Even if he erred in
submitting the VFA to the Senate for
concurrence under the provisions of Section 21
of Article VII, instead of Section 25 of Article
XVIII of the Constitution, still, the President may
not be faulted or scarred, much less be
adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious
manner.
For while it is conceded that Article VIII, Section
1, of the Constitution has broadened the scope
of judicial inquiry into areas normally left to the
political departments to decide, such as those
relating to national security, it has not
altogether done away with political questions
such as those which arise in the field of foreign
relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely
(to) check whether or not the governmental
branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that
it erred or has a different view. In the absence
of a showing (of) grave abuse of discretion
amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective
powerIt has no power to look into what it thinks
is apparent error.[55]
As to the power to concur with treaties, the
constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that
power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed
to constitute an abuse of power, much less

31

grave abuse thereof. Corollarily, the Senate, in

the exercise of its discretion and acting within
the limits of such power, may not be similarly
faulted for having simply performed a task
conferred and sanctioned by no less than the
fundamental law.

WHEREFORE, in light of the foregoing

disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.

For the role of the Senate in relation to treaties

is essentially legislative in character;[57] the
Senate, as an independent body possessed of
its own erudite mind, has the prerogative to
either accept or reject the proposed
agreement, and whatever action it takes in the
exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality
of the act. In this sense, the Senate partakes a
principal, yet delicate, role in keeping the
principles of separation of powers and
of checks and balances alive and vigilantly
ensures that these cherished rudiments remain
true to their form in a democratic government
such as ours. The Constitution thus animates,
through this treaty-concurring power of the
Senate, a healthy system of checks and
balances indispensable toward our nations
pursuit of political maturity and growth. True
enough, rudimentary is the principle that
matters pertaining to the wisdom of a
legislative act are beyond the ambit and
province of the courts to inquire.
In fine, absent any clear showing of grave
abuse of discretion on the part of respondents,
this Court- as the final arbiter of legal
controversies and staunch sentinel of the rights
of the people - is then without power to
conduct an incursion and meddle with such
affairs purely executive and legislative in
character and nature. For the Constitution no
less, maps out the distinct boundaries and
limits the metes and bounds within which each
of the three political branches of government
may exercise the powers exclusively and
essentially conferred to it by law.

32

G.R. No. 151445

April 11, 2002

ARTHUR D. LIM and PAULINO R.

ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as
alter ego of HER EXCELLENCEY GLORIA
MACAPAGAL-ARROYO, and HONORABLE
ANGELO REYES in his capacity as
Secretary of National Defense,respondents.
---------------------------------------SANLAKAS and PARTIDO NG
MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO
ROMULO, ANGELO REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and
prohibition as well as a petition-in-intervention,
praying that respondents be restrained from
proceeding with the so-called "Balikatan 02-1"
and that after due notice and hearing, that
judgment be rendered issuing a permanent writ
of injunction and/or prohibition against the
deployment of U.S. troops in Basilan and
Mindanao for being illegal and in violation of
the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel
from the armed forces of the United States of
America started arriving in Mindanao to take
part, in conjunction with the Philippine military,
in "Balikatan 02-1." These so-called "Balikatan"
exercises are the largest combined training
operations involving Filipino and American
troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual

Defense Treaty,1 a bilateral defense agreement

entered into by the Philippines and the United
States in 1951.
Prior to the year 2002, the last "Balikatan" was
held in 1995. This was due to the paucity of
any formal agreement relative to the treatment
of United States personnel visiting the
Philippines. In the meantime, the respective
governments of the two countries agreed to
hold joint exercises on a reduced scale. The
lack of consensus was eventually cured when
the two nations concluded the Visiting Forces
Agreement (V FA) in 1999.

conducted in Mindanao. They likewise pray for

a relaxation on the rules relative to locus
standi citing the unprecedented importance of
the issue involved.
On February 71 2002 the Senate conducted a
hearing on the "Balikatan" exercise wherein
Vice-President Teofisto T. Guingona, Jr., who is
concurrently Secretary of Foreign. Affairs,
presented the Draft Terms of Reference
(TOR).3 Five days later, he approved the TOR,
which we quote hereunder:
I. POLICY LEVEL

The entry of American troops into Philippine

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

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).

On February 1, 2002, petitioners Arthur D. Lim

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

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.

Lim and Ersando filed suit in their capacities as

citizens, lawyers and taxpayers. SANLAKAS and
PARTIDO, on the other hand, aver that certain
members of their organization are residents of
Zamboanga and Sulu, and hence will be
directly affected by the operations being

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.

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

33

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 selfdefense.
9. These terms of Reference are for purposes of
this Exercise only and do not create additional
legal obligations between the US Government
and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of
mutual military assisting, advising and training
of RP and US Forces with the primary objective
of enhancing the operational capabilities of
both forces to combat terrorism.
b. At no time shall US Forces operate
independently within RP territory.
c. Flight plans of all aircraft involved in the
exercise will comply with the local air traffic
regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a
country and area briefing at the start of the
Exercise. This briefing shall acquaint US Forces
on the culture and sensitivities of the Filipinos
and the provisions of the VF A. The briefing
shall also promote the full cooperation on the
part of the RP and US participants for the
successful conduct of the Exercise.
b. RP and US participating forces may share, in
accordance with their respective laws and
regulations, in the use of their resources,
equipment and other assets. They will use their
respective logistics channels.
c. Medical evaluation shall be jointly planned
and executed utilizing RP and US assets and
resources.
d. Legal liaison officers from each respective
party shall be appointed by the Exercise
Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall
be established at the Exercise Directorate in
Zamboanga City and at GHQ, AFP in Camp
Aguinaldo, Quezon City.
b. Local media relations will be the concern of
the AFP and all public affairs guidelines shall be
jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be
planned and executed jointly by RP and US
Forces in accordance with their respective laws
and regulations, and in consultation with
community and local government officials.
Contemporaneously, Assistant Secretary for
American Affairs Minerva Jean A. Falcon and
United States Charge d' Affaires Robert Fitts
signed the Agreed Minutes of the discussion
between the Vice-President and Assistant
Secretary Kelly.4

Petitioners Lim and Ersando present the

following arguments:
I
THE PHILIPPINES AND THE UNITED STATES
SIGNED THE MUTUAL DEFENSE TREATY (MDT)
in 1951 TO PROVIDE MUTUAL MILITARY ASSIST
ANCE IN ACCORDANCE WITH THE
'CONSTITUTIONAL PROCESSE-S' OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED
ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF
THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT
BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED
FORCE THAT HAS SUBJECT THE PHILIPPINES TO
AN ARMED EXTERNAL ATTACK TO WARRANT
U.S. MILITARY ASSISTANCE UNDER THE MDT OF
1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE
AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT
EVEN TO FIRE BACK "IF FIRED UPON".
Substantially the same points are advanced by
petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to
infirmities in the petitions regarding, inter
alia, Lim and Ersando's standing to file suit, the
prematurity of the action, as well as the
impropriety of availing of certiorari to ascertain
a question of fact. Anent their locus standi, the
Solicitor General argues that first, they may not
file suit in their capacities as, taxpayers
inasmuch as it has not been shown that
"Balikatan 02-1 " involves the exercise of
Congress' taxing or spending
powers. Second, their being lawyers does not
invest them with sufficient personality to
initiate the case, citing our ruling
in Integrated Bar of the Philippines v.

34

Zamora.5 Third, Lim and Ersando have failed

to demonstrate the requisite showing of direct
personal injury. We agree.
It is also contended that the petitioners are
indulging in speculation. The Solicitor General
is of the view that since the Terms of Reference
are clear as to the extent and duration of
"Balikatan 02-1," the issues raised by
petitioners are premature, as they are based
only on a fear of future violation of the Terms of
Reference. Even petitioners' resort to a special
civil action for certiorari is assailed on the
ground that the writ may only issue on the
basis of established facts.
Apart from these threshold issues, the Solicitor
General claims that there is actually no
question of constitutionality involved. The true
object of the instant suit, it is said, is to obtain
an interpretation of the V FA. The Solicitor
General asks that we accord due deference to
the executive determination that "Balikatan 021" is covered by the VFA, considering the
President's monopoly in the field of foreign
relations and her role as commander-in-chief of
the Philippine armed forces.
Given the primordial importance of the issue
involved, it will suffice to reiterate our view on
this point in a related case:
Notwithstanding, in view of the paramount
importance and the constitutional significance
of the issues raised in the petitions, this Court,
in the exercise of its sound discretion, brushes
aside the procedural barrier and takes
cognizance of the petitions, as we have done in
the early Emergency Powers Cases, where
we had occasion to rule:
'x x x ordinary citizens and taxpayers were
allowed to question the constitutionality of
several executive orders issued by President
Quirino although they were involving only an
indirect and general interest shared in common
with the public. The Court dismissed the

objection that they were not proper parties and

ruled that 'transcendental importance to
the public of these cases demands that
they be settled promptly and definitely,
brushing aside, if we must, technicalities
of procedure.' We have since then applied the
exception in many other cases. [citation
omitted]
This principle was reiterated in the subsequent
cases of Gonzales vs. COMELEC, Daza vs.
Singson, and Basco vs. Phil, Amusement
and Gaming Corporation, where we
emphatically held:
Considering however the importance to the
public of the case at bar, and in keeping with
the Court's duty, under the 1987 Constitution,
to determine whether or not the other
branches of the government have kept
themselves within the limits of the Constitution
and the laws that they have not abused the
discretion given to them, the Court has
brushed aside technicalities of procedure and
has taken cognizance of this petition. xxx'
Again, in the more recent case of Kilosbayan
vs. Guingona, Jr., this Court ruled that in
cases of transcendental importance, the Court
may relax the standing requirements and
allow a suit to prosper even where there
is no direct injury to the party claiming
the right of judicial review.
Although courts generally avoid having to
decide a constitutional question based on the
doctrine of separation of powers, which enjoins
upon the department of the government a
becoming respect for each other's act, this
Court nevertheless resolves to take cognizance
of the instant petition.6
Hence, we treat with similar dispatch the
general objection to the supposed prematurity
of the action. At any rate, petitioners' concerns
on the lack of any specific regulation on the
latitude of activity US personnel may undertake

and the duration of their stay has been

addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be
studied in the framework of the treaty
antecedents to which the Philippines bound
itself. The first of these is the Mutual Defense
Treaty (MDT, for brevity). The MDT has been
described as the "core" of the defense
relationship between the Philippines and its
traditional ally, the United States. Its aim is to
enhance the strategic and technological
capabilities of our armed forces through joint
training with its American counterparts; the
"Balikatan" is the largest such training exercise
directly supporting the MDT's objectives. It is
this treaty to which the V FA adverts and the
obligations thereunder which it seeks to
reaffirm.
The lapse of the US-Philippine Bases
Agreement in 1992 and the decision not to
renew it created a vacuum in US-Philippine
defense relations, that is, until it was replaced
by the Visiting Forces Agreement. It should be
recalled that on October 10, 2000, by a vote of
eleven to three, this Court upheld the validity
of the VFA.7 The V FA provides the "regulatory
mechanism" by which "United States military
and civilian personnel [may visit] temporarily in
the Philippines in connection with activities
approved by the Philippine Government." It
contains provisions relative to entry and
departure of American personnel, driving and
vehicle registration, criminal jurisdiction,
claims, importation and exportation, movement
of vessels and aircraft, as well as the duration
of the agreement and its termination. It is the
VFA which gives continued relevance to the
MDT despite the passage of years. Its primary
goal is to facilitate the promotion of optimal
cooperation between American and Philippine
military forces in the event of an attack by a
common foe.
The first question that should be addressed is
whether "Balikatan 02-1" is covered by the

35

Visiting Forces Agreement. To resolve this, it is

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

of the treaty and accepted by the other parties

as an instrument related to the party .

We are not left completely unaided, however.

The Vienna Convention on the Law of Treaties,
which contains provisos governing
interpretations of international agreements,
state:

Article 32

SECTION 3. INTERPRETATION OF TREATIES

Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill
accordance with the ordinary meaning to be
given to the tenus of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the
interpretation of a treaty shall comprise, in
addition to the text, including its preamble and
annexes:
(a) any agreement relating to the treaty which
was made between all the parties in connexion
with the conclusion of the treaty;
(b) any instrument which was made by one or
more parties in connexion with the conclusion

3. There shall be taken into account, together

with the context:
(a) any subsequent agreement between the
parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any subsequent practice in the application
of the treaty which establishes the agreement
of the parties regarding its interpretation;
(c) any relevant rules of international law
applicable in the relations between the parties.
4. A special meaning shall be given to a term if
it is established that the parties so intended.

Supplementary means of interpretation

Recourse may be had to supplementary means
of interpretation, including the preparatory
work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning
resulting from the application of article 31, or
to determine the meaning when the
interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure;
or
(b) leads to a result which is manifestly absurd
unreasonable.
It is clear from the foregoing that the cardinal
rule of interpretation must involve an
examination of the text, which is presumed to
verbalize the parties' intentions. The
Convention likewise dictates what may be used
as aids to deduce the meaning of terms, which
it refers to as the context of the treaty, as well
as other elements may be taken into account
alongside the aforesaid context. As explained
by a writer on the Convention ,

[t]he Commission's proposals (which were

adopted virtually without change by the
conference and are now reflected in Articles 31
and 32 of the Convention) were clearly based
on the view that the text of a treaty must be
presumed to be the authentic expression of the
intentions of the parties; the Commission
accordingly came down firmly in favour of the
view that 'the starting point of interpretation is
the elucidation of the meaning of the text, not
an investigation ab initio into the intentions of
the parties'. This is not to say that
the travauxpreparatoires of a treaty , or the
circumstances of its conclusion, are relegated
to a subordinate, and wholly ineffective, role.
As Professor Briggs points out, no rigid
temporal prohibition on resort to travaux
preparatoires of a treaty was intended by the
use of the phrase 'supplementary means of
interpretation' in what is now Article 32 of the
Vienna Convention. The distinction between
the general rule of interpretation and the
supplementary means of interpretation is
intended rather to ensure that the
supplementary means do not constitute an
alternative, autonomous method of
interpretation divorced from the general rule.10
The Terms of Reference rightly fall within the
context of the VFA.
After studied reflection, it appeared farfetched
that the ambiguity surrounding the meaning of
the word .'activities" arose from accident. In
our view, it was deliberately made that way to
give both parties a certain leeway in
negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes
other than military. As conceived, the joint
exercises may include training on new
techniques of patrol and surveillance to protect
the nation's marine resources, sea search-andrescue 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.

36

Under these auspices, the VFA gives legitimacy

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

In our considered opinion, neither the MDT nor

the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in
mind the salutary proscription stated in the
Charter of the United Nations, to wit:

That is not the end of the matter, though.

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

4. All Members shall refrain in their

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

Article 2
The Organization and its Members, in pursuit of
the Purposes stated in Article 1, shall act in
accordance with the following Principles.
xxx

xxx

xxx

xxx

xxx

xxx

xxx

xxx

In the same manner, both the Mutual Defense

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

xxx

xxx

xxx

SEC. 2. The Philippines renounces war as an

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

xxx

xxx

xxx

xxx

SEC. 7. The State shall pursue an independent

foreign policy. In its relations with other states
the paramount consideration shall be national
sovereignty, territorial integrity, national
interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the
national interest, adopts and pursues a policy
of freedom from nuclear weapons in the
country.
xxx

xxx

xxx

xxx

The Constitution also regulates the foreign

relations powers of the Chief Executive when it
provides that "[n]o treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the
members of the Senate."12 Even more
pointedly, the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the
Agreement between the Republic of the
Philippines and the United States of America
concerning Military Bases, foreign military
bases, troops or facilities shall not be allowed
in the Philippines except under a treaty duly
concurred in by the Senate and, when the
Congress so requires, ratified by a majority of
the votes cast by the people in a national
referendum held for that purpose, and
recognized as a treaty by the other contracting
state.
The aforequoted provisions betray a marked
antipathy towards foreign military presence in
the country, or of foreign influence in general.
Hence, foreign troops are allowed entry into the
Philippines only by way of direct exception.
Conflict arises then between the fundamental
law and our obligations arising from
international agreements.
A rather recent formulation of the relation of
international law vis-a-vis municipal law was

37

expressed in Philip Morris, Inc. v.

Court of Appeals,13 to wit:
xxx Withal, the fact that international law has
been made part of the law of the land does not
by any means imply the primacy of
international law over national law in the
municipal sphere. Under the doctrine of
incorporation as applied in most countries,
rules of international law are given a standing
equal, not superior, to national legislation.
This is not exactly helpful in solving the
problem at hand since in trying to find a middle
ground, it favors neither one law nor the other,
which only leaves the hapless seeker with an
unsolved dilemma. Other more traditional
approaches may offer valuable insights.
From the perspective of public international
law, a treaty is favored over municipal law
pursuant to the principle ofpacta sunt
servanda. Hence, "[e]very treaty in force is
binding upon the parties to it and must be
performed by them in good faith."14 Further, a
party to a treaty is not allowed to "invoke the
provisions of its internal law as justification for
its failure to perform a treaty."15
Our Constitution espouses the opposing view.
Witness our jurisdiction as I stated in section 5
of Article VIII:
The Supreme Court shall have the following
powers:
xxx

xxx

xxx

xxx

(2) Review, revise, reverse, modify, or affirm on

appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and order
of lower courts in:
(A) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.

xxx

xxx

xxx

xxx

In Ichong v. Hernandez,16 we ruled that the

provisions of a treaty are always subject to
qualification or amendment by a subsequent
law, or that it is subject to the police power of
the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an
international agreement may be invalidated by
our courts, suffice it to say that the
Constitution of the Philippines has clearly
settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the
Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify,
or affirm on appeal, certiorari, or writ of error
as the law or the rules of court may provide,
final judgments and decrees of inferior courts
in -( I) All cases in which
the constitutionality or validity of
anytreaty, law, ordinance, or executive order or
regulation is in question." In other words, our
Constitution authorizes the nullification of a
treaty, not only when it conflicts with the
fundamental law, but, also, when it runs
counter to an act of Congress.
The foregoing premises leave us no doubt that
US forces are prohibited / from engaging in an
offensive war on Philippine territory.
Yet a nagging question remains: are American
troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged
training and assistance exercise? Contrary to
what petitioners would have us do, we cannot
take judicial notice of the events transpiring
down south,18 as reported from the saturation
coverage of the media. As a rule, we do not
take cognizance of newspaper or electronic
reports per se, not because of any issue as to
their truth, accuracy, or impartiality, but for the
simple reason that facts must be established in
accordance with the rules of evidence. As a
result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the

Arroyo government is engaged in

"doublespeak" in trying to pass off as a mere
training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to
speculate on what is really happening in
Mindanao, to issue I make factual findings on
matters well beyond our immediate perception,
and this we are understandably loath to do.
It is all too apparent that the determination
thereof involves basically a question of fact. On
this point, we must concur with the Solicitor
General that the present subject matter is not a
fit topic for a special civil action
forcertiorari. We have held in too many
instances that questions of fact are not
entertained in such a remedy. The sole object
of the writ is to correct errors of jurisdiction or
grave abuse of discretion: The phrase "grave
abuse of discretion" has a precise meaning in
law, denoting abuse of discretion "too patent
and gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform the
duty enjoined or act in contemplation of law, or
where the power is exercised in an arbitrary
and despotic manner by reason of passion and
personal hostility."19
In this connection, it will not be amiss to add
that the Supreme Court is not a trier of facts.20
Under the expanded concept of judicial power
under the Constitution, courts are charged with
the duty "to determine whether or not there
has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
government."21 From the facts obtaining, we
find that the holding of "Balikatan 02-1" joint
military exercise has not intruded into that
penumbra of error that would otherwise call for
correction on our part. In other words,
respondents in the case at bar have not
committed grave abuse of discretion
amounting to lack or excess of jurisdiction.

38

WHEREFORE, the petition and the petition-inintervention are hereby DISMISSED without
prejudice to the filing of a new petition
sufficient in form and substance in the proper
Regional Trial Court.
SO ORDERED.
Bellosillo, Melo, Mendoza, Quisumbing, Carpio,
JJ., concur.
Kapunan, dissenting opinion.
Ynares-Santiago, join the dissenting opinion.
Panganiban, separate opinion.
Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join
the main and separate opinion of J.
Panganiban.

Footnotes
1

For ready reference, the text of the treaty is

reproduced herein:
"MUTUAL DEFENSE TREATY
BETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA
30 August 1951
"The parties to this Treaty,
'"Reaffirming their faith in the purposes and
principles of the Charter of the United Nations
and their desire to live in peace with all peoples
and all Governments, and desiring to
strengthen the fabric of peace in the Pacific
Area,
"Recalling with mutual pride the historic
relationship which brought their two peoples
together in a common bond of sympathy and

mutual ideals to fight side-by-side against

imperialist aggression during the last war,
"Desiring to declare publicly and formally their
sense of unity and their common determination
to defend themselves against external armed
attack, so that no potential aggressor could be
under the illusion that either of them stands
alone in the Pacific Area,
"Desiring further to strengthen their present
efforts for collective defense for the
preservation of peace and security pending the
development of a more comprehensive system
of regional security in the Pacific Area,
"Agreeing that nothing in this present
instrument shall be considered or interpreted
as in any way , or sense altering or diminishing
any existing agreements or understandings
between the United States of America and the
Republic of the Philippines,
"Have agreed as follows:
"ARTICLE I.
"The Parties undertake, as set forth in the
Charter of the United Nations, to settle any
international disputes in which they may be
involved by peaceful means in such a manner
that international peace and security and
justice are not endangered and to refrain in
their international relations from the threat or
use of force in any manner inconsistent with
the purpose of the United Nations.
"ARTICLE II.

"The Parties, through their Foreign Ministers or

their deputies, will consult together from time
to time regarding the implementation of this
Treaty and whenever in the opinion of either of
them the territorial integrity, political
independence or security of either of the
Parties is threatened by external.'
I armed attack in the Pacific.
"ARTICLE IV.
"Each Party recognizes that an armed attack in
the Pacific Area on either of the Parties would
be dangerous to its own peace and safety and
declares that it would act to meet the common
dangers in accordance with its constitutional
processes.
" Any such armed attack and all measures
taken as a result thereof shall be immediately
reported to the Security Council of the United
Nations. Such measures shall be terminated
when the Security Council has taken the
measures necessary to restore and maintain
international peace and security.
"ARTICLE V.
"For the purpose of Article IV, an armed attack
on either of the Parties is deemed to include an
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 used in the Pacific.
"ARTICLE VI.

"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.

"This Treaty does not affect and shall not be

interpreted as affecting in any way the rights
and obligations of the Parties under the Charter
of the United Nations or the responsibility of
the United Nations for the maintenance of
international peace and security.

"ARTICLE III.

"ARTICLE VII.

39

"This Treaty shall be ratified by the United

States of America and the Republic of the
Philippines in accordance with their respective
constitutional processes and will come into
force when instruments of ratification thereof
have been exchanged by them at Manila.
"ARTICLE VIII.
"This Treaty shall remain in force indefinitely.
Either Party may terminate it one year after
notice has been given to the other party.
"IN WITNESS WHEREOF the undersigned
Plenipotentiaries have signed this Treaty.
"DONE in duplicate at Washington this thirtieth
day of August, 1951."
xxx

xxx

xxx

xxx

The day before, the first petition in connection

with the joint military enterprise was filed
--G.R. No.151433, entitled "In the Matter of
Declaration as Constitutional and Legal the
'Balikatan' RP- US Military Exercises." Petitioner
therein Atty. Eduardo B. Inlayo manifested that
he would be perfectly "comfortable" should the
Court merely "note" his petition. We did not
oblige him; in a Resolution dated February 12,
2002, we dismissed his petition on the grounds
of insufficiency in form and substance and lack
of jurisdiction. After extending a hearty
Valentine's greeting to the Court en banc, Atty.
Inlayo promised to laminate the aforesaid
resolution as a testimonial of his "once upon a
time" participation in an issue of national
consequence.
3

Annex 1 of the Comment.

Annex 2 of the Comment. The Minutes state:

"Secretary Guingona and Assistant Secretary

Kelly welcomed the holding of Balikatan 02-1
exercise ('the Exercise") and the conclusion of
the Terms of Reference for the Exercise.
Assistant Secretary Kelly thanked Secretary

Guingona for Secretary Guingona's personal

approval of the Terms of Reference.

forces are in the Philippines to advise, assist

and train Philippine military forces.

"Both Secretary Guingona and Assistant

Secretary Kelly emphasized the importance of
cooperating, within the bounds provided for by
their respective constitutions and laws, in the
fight against international terrorism.

"Both Secretary Guingona and Assistant

Secretary Kelly reiterated that, as provided in
the Terms of Reference, U.S. Forces shall not
engage in combat during the Exercise, except
in accordance with their right to act in selfdefense.

"Both Secretary Guingona and Assistant

Secretary Kelly expressed the belief that the
Exercise shall not in any way contribute to any
escalation of other conflicts in Mindanao, shall
not adversely affect the progress of ongoing
peace negotiations between the Government of
the Philippines and other parties, and shall not
put at risk the friendly relations between the
Philippines and its neighbors as well as with
other states. Secretary Guingona stated that he
had in mind the ongoing peace negotiations
with the NDF and the MILF and he emphasized
that it is important to make sure that the
Exercsie shall not in any way hinder those
negotiations.
"Both Secretary Guingona and Assistant
Secretary Kelly stated that they look forward to
the realization of the nearly US$100 million in
security assistance for fiscal years 2001-2002
agreed upon between H.E. President Gloria
Macapagal-Arroyo and H.E. President George W.
Bush last November 2001.
"Secretary Guingona stated that the Philippines
welcomes the assistance that the U.S. will be
providing, saying that while Filipino soldier
does not lack experience, courage and
determination, they could benefit from
additional knowledge and updated military
technologies.
"Assistant Secretary Kelly said that he is glad
the U.S. is able to provide advice, assistance
and training and reiterated the policy position
expressed by H.E. President George W. Bush
during his State of the Nation Address that U.S.

Both Secretary Guingona and Assistant

Secretary Kelly reiterated that, pursuant to
Article II of the Visiting Forces Agreement, U.S.
forces are bound to respect the laws of the
Philippines during the Exercise.
"Both Secretary Guingona and Assistant
Secretary Kelly recognized that, pursuant to
Article VI of the Visiting Forces Agreement,
both the U.S. and Philippine Governments
waive any and all claims against the other for
any deaths or injuries to their military and
civilian personnel from the Exercise.
"Secretary Guingona and Assistant Secretary
Kelly designated Ambassador Minerva Falcon
and Charge d' Affaires, a.i. Robert Fitts to initial
these minutes.
"Both Secretary Guingona and Assistant
Secretary Kelly agreed to consult from time to
time on matters relating to the Exercise as well
as on other matters."
Notwithstanding, in view of the paramount
importance and the constitutional significance
of the issues raised in the petitions, this Court,
in the exercise of its sound discretion, brushes
aside the procedural barrier and takes
cognizance of the petitions, as we have done in
the early Emergency Powers Cases, where we
had occasion to rule:
5

338 SCRA 81, 100-101 (2000).

'x x x ordinary citizens and taxpayers were

allowed to question the constitutionality of
several executive orders issued by President

40

Quirino although they were involving only an

indirect and general interest shared in common
with the public. The Court dismissed the
objection that they were not proper parties and
ruled that 'transcendental importance to the
public of these cases demands that they be
settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. ' We
have since then applied the exception in many
other cases. [ citation omitted]
This principle was reiterated in the subsequent
cases of Gonzales vs. COMELEC, Daza vs.
Singson, and Basco vs. Phil. Amusement and
Gaming Corporation, where we emphatically
held:
'Considering however the importance to the
public of the case at bar, and in keeping with
the Court's duty, under the 1987 Constitution,
to detemine whether or not the other branches
of the governrnent have kept themselves
within the limits of the Constitution and the
laws that that they have not abused the
discretion given to them, the Court has
brushed aside technicalities of procedure and
has taken cognizance of this petition.xxx
Again, in the more recent case of Kilosbayan
vs. Guingona, Jr., this Court ruled that in cases
of i transcendental importance, the Court may
relax the standing requirements and allow a
suit to prosper even , where there is no direct
injury to the party claiming the right of judicial
review.
Although courts generally avoid having to
decide a constitutional question based on the
doctrine of separation, of powers, which enjoins
upon the departments of the government a
becoming respect for each others' acts, this
Court nevertheless resolves to take cognizance
of the instant petitions.6
6 BAYAN, et. al. Y. Zamora, 342 SCRA 449
(2000).

BAYAN, et. al. v. Zamora, et. al., 342 SCRA

449 (2000).
8

Article I [Definitions], VFA.

Article II [Respect for Law], VFA.

10

l.M. SINCLA1R, THE VIENNA CONVENTION ON

THE LAW OF TREATIES 71-72 (1973).
II

"No one is allowed to do indirectly what he is

prohibited to do directly." 12 Sec. . 12 SEC.21,
Art. VII.
13

224 SCRA 576, 593 (1993).

14

Vienna Convention on the Law of Treaties,

art. 26.

the Philippines, the official acts of the

legislative, executive and judicial departments
of the Philippines, the laws of nature, the
measure of time, and the geographical
divisions." Likewise, it is also provided in the
next succeeding section: "SEC. 2. Judicial
notice, when discretionary.-A court may take
judicial notice of matters which are of public
knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges
because of their judicial functions."
19

Sanchez v. National Labor Relations

Commission, 312 SCRA 727 ( 1999).
20

Hervas v. Court of Appeals, 319 SCRA 776

(1999); Valmonte v. Court of Appeals, 303 SCRA
278 ( 1999). 1wphi1.nt

15

Id, art. 27. However, this is without prejudice

to the provisions of art. 46 of the Convention,
which provides:

21

Article VIII, section 1.

The Lawphil Project - Arellano Law Foundation

"1. A State may not invoke the fact that its

consent to be bound by a treaty has been
expressed in violation of a provision of its
internal law regarding competence to conclude
treaties as invalidating its consent unless that
violation was manifest and concerned a rule of
its internal law of fundamental importance.
"2. A violation is manifest if it would be
objectively evident to any State conducting
itself in the manner in accordance with normal
practice and in good faith."
16

101 Phil. 1155, 1191 (1957).

17

9 SCRA 230,242 (1963).

18

Pertinent sections of Rule 129 provide:

"SECTION I. Judicial notice, when mandatory.A court shall take judicial notice, without the
introduction of evidence, of the existence and
territorial extent of states, their political history
, forms of government and symbols of
nationality, the law of nations, the admiralty
and maritime courts of the world and their
seals, the political constitution and history of

EN BANC
G.R. No. 151445

April 11, 2002

ARTHUR D. LIM and PAULINO R.

ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as
alter ego of HER EXCELLENCY PRESIDENT
GLORIA MACAPAGAL-ARROYO and
HONORABLE ANGELO REYES in his official
capacity as Secretary of National
Defense, respondents.
SANLAKAS and PARTIDO NG
MANGGAGAWA, intervenors.

41

The salient features of the joint military

exercises as embodied in the Terms of
Reference (TOR) are summarized as follows:
DISSENTING OPINION
KAPUNAN, J.:
On September 11, 2001, terrorists, with the use
of hijacked commercial airplanes, attacked the
World Trade Center Building in New York City
and the Pentagon Building in Washington D.C.,
U.S.A., killing thousands of people.
Following the attacks, the United States
declared a "global war" against terrorism and
started to bomb and attack Afghanistan to
topple the Taliban regime and capture Osama
bin Laden, the suspected mastermind of the
September 11, 2001 attacks. With the Northern
Alliance mainly providing the ground forces,
the Taliban regime fell in a few months, without
Osama bin Laden having been captured. He is
believed either to be still in Afghanistan or has
crossed the border into Pakistan.
In line with President Gloria Macapagal-Arroyo's
pledge to render all-out aid to the US in its
campaign against "global terrorism," an
arrangement for a. joint military exercises
known as "RP-US Balikatan 02-1 Exercises" was
entered into between the US and Philippine
authorities, allegedly within the ambit of the
Visiting Forces Agreement (V FA) with the main
objective of enhancing the operational
capabilities of the countries in combating
terrorism. The US government has identified
the Abu Sayyaf Group (ASG) in the Philippines
as a terrorist group forming part of a "terrorist
underground" linked to the al-Qaeda network of
Osama bin Laden.
Beginning January 21, 2002, American troops
started arriving in Mindanao as part of the total
contingent force of 660 soldiers, 160 to be
stationed in Basilan, 200 to 250 in Zamboanga,
and 250 in the Air Force base in Mactan, Cebu.

(a) The exercise shall be consistent with the

Constitution and other Philippine laws,
particularly the RP-US Visiting Forces
Agreement;
(b) No permanent US bases and support
facilities will be established;
(c) The exercise shall be implemented jointly by
RP and US Exercise Co-Directors under the
direction of the Chief of Staff of the AFP and in
no instance will US Forces operate
independently during field training exercises;
(d) It 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, and the Chief of Staff of the
AFP shall direct the Exercise Co-Directors to
wind up the Exercise and other activities and
the withdrawal of US forces within the sixmonth period;
(e) The exercise "is a mutual counter-terrorism
advising, assisting and training exercise"
relative to Philippine efforts against the Abu
Sayyaf Group 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 also be conducted in
support of the Exercise;
(f) Only 160 US troops organized in 12-man
Special Forces Teams shall be deployed in
Basilan, with the US Team remaining at the
Company Tactical Headquarters where they can
observe and assess the performance of the
troops; and
(g) US exercise participants shall not engage in
combat, without prejudice to their right to selfdefense.

Petitioners now seek the issuance of a writ of

prohibition/injunction to prevent US troops from
participating in areas of armed conflict on the
ground that such is in gross violation of the
Constitution. They argue that:
I
THE PHILIPPINES AND THE UNITED STATES
SIGNED THE MUTUAL DEFENSE TREATY (MDT)
IN 1951 TO PROVIDE MUTUAL MILITARY
ASSISTANCE IN ACCORDANCE WITH THE
CONSTITUTIONAL PROCESSES" OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED
ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF
THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT
BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED
FORCE THAT HAS SUBJECTED THE PHILIPPINES
TO AN ARMED EXTERNAL ATTACK TO WARRANT
US MILITARY ASSISTANCE UNDER THE MDT OF
1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZED
AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT
EVEN TO FIRE BACK "IF FIRED UPON."
Sanlakas and Partido ng Manggagawa as
intervenors seek the same relief as petitioners,
stressing that the Constitution prohibits the
presence of foreign military troops or facilities
in the country, except under a treaty duly
concurred in by the Senate and recognized as a
treaty by the other state.
The petition is impressed with merit.
There is no treaty allowing
US troops to engage in combat.
The Constitution prohibits foreign military
bases, troops or facilities unless a treaty

42

permits the same. Section 25, Article XVIII of

the 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.
There is no treaty allowing foreign military
troops to engage in combat with internal
elements.
The Mutual Defense Treaty (MDT) between the
Republic of the Philippines and the United
States of America does not authorize US
military troops to engage the ASG in combat.
The MDT contemplates only an
"external armed attack." Article III of the
treaty cannot be more explicit:
The Parties, through their Foreign Ministers or
their deputies, will consult together from time
to time regarding the implementation of this
treaty and whenever in the opinion of either of
them the territorial integrity, political
independence or security of either of the
Parties is threatened by external armed attack
in the Pacific. [Emphasis supplied.]
Supporting this conclusion is the third
paragraph of the MDT preamble where the
parties express their desire
to declare publicly and formally their sense of
unity and their common determination to
defend themselves against external armed
attack, so that no potential aggressor could be
under the illusion that either of them stands
alone in the Pacific area. [Emphasis supplied.]

There is no evidence that

the ASG is connected with
"global terrorism."
There is no empirical basis for the allegation
that the "terrorism" which the ASG is accused
of constitutes an "external armed attack." The
ASG has committed mostly crimes of
kidnapping for ransom and murder - common
crimes that are punishable under the penal
code but which, by themselves, hardly
constitute "terrorism."
Parenthetically, there is lack of agreement as to
the precise definition of terrorism. Indeed, one
man's terrorist may be another man's freedom
fighter. The divergent interests of States have
caused contradicting definitions and conflicting
perceptions of what constitutes "terrorist acts"
that make it difficult for the United Nations to
reach a decision on the definition of terrorism.
Because of this "definitional predicament,"
the power of definition is easily exercised by
a superpower which, by reason of its
unchallenged hegemony, could draw lists of
what it considers terrorist organizations or
states sponsoring terrorism based on criteria
determined by the hegemon's own strategic
interests.1
In any case, ties between the ASG and socalled international "terrorist" organizations
have not been established.2 Even assuming
that such ties do exist, it does not necessarily
make the "attacks" by the ASG "external" as to
fall within the ambit of the MDT.
Balikatan exercises are
not covered by VFA as
US troops are not
allowed to engage in combat.
Neither is the present situation covered by the
so-called Visiting Forces Agreement (VFA). The
V FA was concluded after the removal of the US
military bases, troops and facilities in the
aftermath of the termination of the treaty

allowing the presence of American military

bases in the Philippines. The VF A is nothing
more than what its formal name suggests: an
"Agreement between the Government of the
Republic of the Philippines and the Government
of the United States of America regarding
the Treatment of United States Armed Forces
Visiting the Philippines. "The last paragraph of
the V FA preamble also "recogniz[es] the
desirability of defining the treatmentof United
States personnel visiting the Republic of the
Philippines."
The VFA was entered into to enable American
troops to enter the country again after the
removal of the American military bases so they
can participate in military exercises under the
auspices of the Mutual Defense Treaty. It
provided the legal framework under which
American soldiers will be treated while they
remain in the country.
The military exercises contemplated in the VFA
are those in accordance with the National
Defense Plan (NDP) of the Philippines. The NDP
was previously approved and adopted by the
Mutual Defense Board, jointly chaired by the
Chief of Staff of the Armed Forces of the
Philippines and the Commander in the Pacific of
the United States Armed Forces.
The NDP is directed against potential foreign
aggressors, not designed to deal with internal
disorders. This was what the Senate
understood when it ratified the VFA in Senate
Resolution No. 18, which reads:
The VFA shall serve as the legal mechanism to
promote defense cooperation between the two
countries, enhancing the preparedness of the
Armed Forces of the Philippines against
external threats; and enabling the Philippines
to bolster the stability of the Pacific Area in a
shared effort with its neighbor states.
The VFA's ambiguous reference to
"activities"3 is not a loophole that legitimizes

43

the presence of US troops in Basilan. In the

treaty's preamble, the parties "reaffirm their
obligations under the Mutual Defense Treaty of
August 30, 1951." As the preamble comprises
part of a treaty's context for the purpose of
interpretation, the VFA must be read in light of
the provisions of the MDT. As stated earlier, the
MDT contemplates only an external armed
attack; consequently, the "activities" referred
to in the V FA cannot thus be interpreted to
include armed confrontation with or
suppression of the ASG members who appear
to be mere local bandits, mainly engaged in
kidnapping for ransom and murder -even
arson, extortion and illegal possession of
firearms, all of which are common offenses
under our criminal laws. These activities
involve purely police matters and domestic law
and order problems; they are hardly "external"
attacks within the contemplation of the MDT
and the V FA. To construe the vagueness of the
term "activities" in the V FA as authorizing
American troops to confront the ASG in armed
conflict would, therefore, contravene both spirit
and letter of the MDT.
Respondents maintain that the American troops
are not here to fight the ASG but merely to
engage in "training exercises." To allay fears
that the American troops are here to engage
the ASG in combat, the TOR professes that the
present 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."
The TOR further provides that 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."
These avowals of assistance, advice, and
training, however, fly in the face of the
presence of US troops in the heart of the ASG's
stronghold. Such presence is an act of
provocation that makes an armed confrontation

between US soldiers and ASG members

inevitable.
The US troops in Basilan have been described
as being "on a slippery slope between
training and fighting."Their very presence
makes them a target for terrorist and for the
local Moslem populace, which has been bitterly
anti-American since colonial times. Though
they are called advisers, the Americans win be
going on risky missions deep into the jungle. A
former Green Beret who is an analyst of
Washington's Center for Strategies and
Budgetary Assessments notes that "when
troops go out on patrol, they come as close as
they can to direct combat."4
"Advising" or "training" Filipino soldiers hardly
describes the involvement of US troops
(unaccompanied by Filipino counterparts) on
board combat helicopters which land on the
battlegrounds to evacuate Filipino soldiers
wounded while fighting the ASG. For example,
on April 5,2002, US troops on board a Pave
Hawk helicopter flew to the scene of a night
battle on Basilan Island to evacuate a wounded
Filipino soldier. This was reportedly the third
time in recent weeks that chopper-borne US
forces had evacuated Filipino soldiers fighting
the ASG.5
Whatever euphemisms may be conjured
to characterize American involvement,
the RP-US Balikatan 02-1 Exercises are
aimed at seeking out the ASG and
exterminating it.
The prohibition contained in the TOR against
US exercise participants from engaging in
combat but "without prejudice to their right to
self- defense" provides little consolation.
Combat muddles the distinction between
aggression and self-defense. US troops can
always say they did not fire first and no one
would dare say otherwise. The ASG has been
so demonized that no one cares how it is
exorcised. Significantly, the TOR does not

define the parameters of "self-defense."

Militarily, a pre-emptive strike could be
interpreted as an act of self -defense.
What I fear most is that the country would be
dragged into a more devastating and
protracted conflict as a result of the continued
presence of US military troops in Basilan. A
single ASG sniper's bullet felling an American
soldier could be used as an excuse for massive
retaliation by US ground and air forces to
attack and bomb out every suspected ASG lair,
all in the name of "self -defense.
Apprehensions over possible catastrophic
consequence of US military involvement in our
country are not without historical basis.
The US experience in Vietnam, for example,
began as an expression of support for the
establishment of South Vietnam under Bao
Dai's leadership in 1949 to. counteract the
support given by communist China and the
Soviet Union to North Vietnam. In 1950, the US
began providing military assistance in fighting
North Vietnam by sending military advisors as
well as US tanks, planes, artillery and other
supplies. The US became more involved in the
Vietnam conflict when in 1961, it sent the first
400 Green Beret "Special Advisors" to South
Vietnam to train the latter's soldiers in methods
of counter-insurgency against the Viet Cong
guerillas. It clarified that the American
soldiers were not in Vietnam to engage in
combat.6
However, due to the increased success of the
Viet Cong guerillas, assisted by the Northern
Vietnamese Army, the US eventually began to
run covert operations using South Vietnamese
commandos in speed boats to harass radar
sites along the coastline of North Vietnam. In
1964, after an alleged torpedo attack by North
Vietnam of the American destroyers USS.
Maddox and USS. C. Turner Joy in the Gulf of
Tonkin, the US decided to retaliate by
conducting bombing raids in North Vietnam.7

44

The Vietnam War resulted in the death of two

million Vietnamese and injuries to three million
others. Twelve million Vietnamese became
refugees and thousands of children became
orphaned.8 Millions of acres of Vietnam's
forests were defoliated by a herbicide called
Agent Orange, dropped from the air. Millions of
mines and unexploded bombs and artillery
shells are still scattered in the countryside,
posing constant danger to life and limb.
US militarv presence is
essentially indefinite
and open-ended.
Already, there are indications that the US
intends to reestablish a more enduring
presence in the country. Defense Secretary
Angelo Reyes was quoted to have declared on
March 20, 2002 that 2,665 US soldiers will take
part in the RP-US Balikatan 02-2 starting next
month in Central Luzon and that 10 more
military exercises will be held this year.9 How
many more war exercises are needed for
"training and advising" Filipino soldiers? What
conditions must be satisfied for the United
States to consider the "war against terrorism"
in Mindanao terminated? The endless
frequency and successive repetition of the war
exercises covering the two largest islands of
the country amount, in a real sense, to the
permanent presence of foreign military troops
heresans a treaty in blatant violation of the
constitutional proscription.
US President George w. Bush in his January 30,
2002 speech declared:
The men and women of our armed-forces have
delivered a message to every enemy of the
United States. You shall not escape the justice
of this nation. x x x.
Should any country be timid in the face of
terror, if they do not act, America will.
President Arroyo, in a speech at the Regis Hotel
in New York City on February 1, 2002, pledged

her "full support" to US President George W.

Bush in the fight against international
terrorism. She declared that "the Philippines
will continue to be a partner of the United
States in the war to end terrorism" and that
"(t)he anti-terrorism partnership will continue
after the whole world is secure against the
terrorist."10
In his speech on the White House Laws on
March 11, 2002, President Bush exhorted:
America encourages and expects governments
everywhere to help remove the terrorist
parasites that threaten their own countries and
the peace of the world. x x x. We are helping
right now in the Philippines, where terrorist
with links to Al Qaeda are trying to seize the
southern part of the country to establish a
military regime.
They are oppressing local peoples, and have
kidnapped both American and Filipino
citizens."11
The Philippine Daily Inquirer in its March 17,
2002 issue carried the following report:
The United States wants to bring in more
troops for the controversial Balikatan 02-1
training exercise aimed at wiping out the Abu
Sayyaf bandits in Basilan.
The US military last week began calling the
war-games "Operation Enduring FreedomPhilippines," giving credence to claims that the
country has become, after Afghanistan, the
second front of the US-led global war on
terrorism.
Today's issue of April 1, 2002 reporting as its
source New York News Service, quoted a senior
Bush administration official as saying:
We are looking at prolonged training. x x x. It
takes more to build up capabilities than saying
here are some night vision goggles.

The declarations of the two Presidents on the

war against terrorism and their avowal to
secure the world against the terrorists would
ineluctably suggest a long-drawn conflict
without a foreseeable end. Worse, it is not
unlikely that this war could expand and
escalate to include as protagonists the
Moro Islamic Liberation Front and the
Moro National Liberation Front and -not
improbably -the National People's Army,
all lumped-up as "terrorists" in a
unilateral characterization.
No less than US Deputy Defense Secretary Paul
Wolfowitz declared that the proposed $48billion increase to the US defense budget for
2003 is intended to sustain the war on
terrorism,12 including that fought in this
country, thus: .
Deputy Defense Secretary Paul Wolfowitz on
Wednesday said the Pentagon needs a big
budget increase next year on terrorism, which
has expanded from Afghanistan to the
Philippines and now appears to be moving to
Georgia.13
The Court can take judicial notice of the
foregoing pronouncements as they are of
public knowledge,14 having been widely
circulated in all channels of the media. Neither
have they been denied.
US military intervention
is not the solution to the
Mindanao problem.
Assuming that the ASG is a terrorist
organization, U.S. military intervention is not
the solution to achieve peace. The annihilation
of the rebel bandits would be a futile quest so
long at the root causes of their criminality are
not addressed. A study15 by the United Nations
Secretariat, however, acknowledges that
international terrorism springs from "misery,
frustration, grievance and 'despair," elements
which, many believe, are present in Basilan.

45

Two veteran Philippine journalists have

described the province as Mindanao's "war
laboratory," where lawlessness, government
neglect, religious strife, poverty, and power
struggle are rampant.16
If indeed acts of terrorism are cries of
desperation, if terrorism is but a symptom of
the greater maladies of "misery, frustration,
grievance and despair," then it cannot be
remedied alone by ASG's physical
extermination, which appears to be the object
of President Bush and President MacapagalArroyo's joint campaign against global
terrorism." Admittedly, the State has the right
to use force as a means of self-preservation.
But perhaps we should all consider that a
military solution is but a first-aid measure,
not the prescription to these diseases. It has
been opined that:
The issue of terrorism in the Philippines should
be dealt with not from the perspective of
Manila-Washington ties but from a serious
study of how terrorism figures in the minds of
leaders and armed men belonging to the large
but deeply factionalized guerrilla movements in
the country. Terrorism can never be dissociated
from guerrilla warfare and the separatist
movement in Mindanao. From these
movements would arise religious extremists or
millennarian groups. With the right resources
and the right agenda, these movements will
continue to attract men-skilled, intelligent, and
experienced-who will come to grasp the
practical realities of waging a war with the
minimum of resources but maximum public
impact.
The government does not have to look for
foreign connections-and be motivated by the
desire to help foreign friends to address a
problem that has been and will be the making
of its own home grown armies.17
The presence of US troops in Basilan, whether
from the legal, philosophical-or even from the

practical perspective cannot be justified, On

the contrary, it is counterproductive. It serves
to fuel an already volatile situation. US troops
are likely less able, if not less willing, to
distinguish between the innocent and the
enemy. The inevitable "collateral damage," the
killing of women and children, Muslims and
Christians, the destruction of homes, schools
and hospitals would fan the flames of
fanaticism and transform mere rogues into
martyrs.
The Filipino soldier has proven himself brave,
courageous, fearless and tenacious in the field
of battle as shown in Bataan and Corregidor, in
the four long years of guerilla warfare
thereafter against the Japanese, and in the
struggle for independence against Spain and
the United States at the turn of the last
century. The local army and police have
successfully battled in the past against
Communist and other insurgents which were
more organized and numerous, operating in
larger parts of the country and fighting for their
political beliefs. If our troops need training by
us advisers or have to conduct joint exercises
with US troops to improve their fighting
capability, these could be more effectively
achieved if done outside Basilan or away from
the danger zones. Instead of bringing troops to
the combat zones, the US can do more by
supplying our soldiers with modern and high
tech weaponry.
Prescinding from the foregoing disquisitions, it
is totally erroneous to argue that petitioners do
not have legal standing or that the issues
raised by them are premature and not based
on sufficient facts. The issues raised are of
transcendental importance.18
The Balikatan exercises pose direct injury to
some of the petitioners (intervenors) who live
in the affected areas. The presence of us troops
in the combat zones "assisting" and "advising"
our troops in combat against the ASG is a
blatant violation of the Constitutional
proscription against the stationing of foreign

troops to fight a local insurgency and puts the

country in peril of becoming a veritable killing
field. If the time is not ripe to challenge the
continuing affront against the Constitution and
the safety of the people, when is the right
time? When the countryside has been
devastated and numerous lives lost?
I therefore vote to give due course to the
petition.

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTIBASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City
of Manila, respondent.
Lorenzo M. Taada Jose W. Diokno and Haydee
B. Yorac for petitioner.
The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1
This Court, in this case of first impression, at
least as to some aspects, is called upon to
delineate the boundaries of the protected area
of the cognate rights to free speech and
peaceable assembly, 1 against an alleged
intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice JB L.
Reyes, on behalf of the Anti-Bases Coalition
sought a permit from the City of Manila to hold
a peaceful march and rally on October 26, 1983
from 2:00 to 5:00 in the afternoon, starting
from the Luneta, a public park, to the gates of
the United States Embassy, hardly two blocks
away. Once there, and in an open space of
public property, a short program would be
held. 2 During the course of the oral
argument, 3 it was stated that after the delivery

46

of two brief speeches, a petition based on the

resolution adopted on the last day by the
International Conference for General
Disbarmament, World Peace and the Removal
of All Foreign Military Bases held in Manila,
would be presented to a representative of the
Embassy or any of its personnel who may be
there so that it may be delivered to the United
States Ambassador. The march would be
attended by the local and foreign participants
of such conference. There was likewise an
assurance in the petition that in the exercise of
the constitutional rights to free speech and
assembly, all the necessary steps would be
taken by it "to ensure a peaceful march and
rally." 4
The filing of this suit for mandamus with
alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was
due to the fact that as of that date, petitioner
had not been informed of any action taken on
his request on behalf of the organization to
hold a rally. On October 25, 1983, the answer
of respondent Mayor was filed on his behalf by
Assistant Solicitor General Eduardo G.
Montenegro. 5 It turned out that on October 19,
such permit was denied. Petitioner was
unaware of such a fact as the denial was sent
by ordinary mail. The reason for refusing a
permit was due to police intelligence reports
which strongly militate against the advisability
of issuing such permit at this time and at the
place applied for." 6 To be more specific,
reference was made to persistent intelligence
reports affirm[ing] the plans of
subversive/criminal elements to infiltrate
and/or disrupt any assembly or congregations
where a large number of people is expected to
attend." 7 Respondent Mayor suggested,
however, in accordance with the
recommendation of the police authorities, that
"a permit may be issued for the rally if it is to
be held at the Rizal Coliseum or any other
enclosed area where the safety of the
participants themselves and the general public
may be ensured." 8

The oral argument was heard on October 25,

1983, the very same day the answer was filed.
The Court then deliberated on the matter. That
same afternoon, a minute resolution was issued
by the Court granting the mandatory injunction
prayed for on the ground that there was no
showing of the existence of a clear and present
danger of a substantive evil that could justify
the denial of a permit. On this point, the Court
was unanimous, but there was a dissent by
Justice Aquino on the ground that the holding of
a rally in front of the US Embassy would be
violative of Ordinance No. 7295 of the City of
Manila. The last sentence of such minute
resolution reads: "This resolution is without
prejudice to a more extended opinion." 9 Hence
this detailed exposition of the Court's stand on
the matter.
1. It is thus clear that the Court is called upon
to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising
from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed
abridging the freedom of speech, or of the
press, or the right of the people peaceably to
assemble and petition the Government for
redress of grievances." 10 Free speech, like free
press, may be Identified with the liberty to
discuss publicly and truthfully any matter of
public concern without censorship or
punishment. 11 There is to be then no previous
restraint on the communication of views or
subsequent liability whether in libel
suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless
there be a clear and present danger of a
substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the
right people to meet peaceably for consultation
and discussion of matters Of public
concern. 17 It is entitled to be accorded the
utmost deference and respect. It is hot to be
limited, much less denied, except on a
showing, as 's the case with freedom of
expression, of a clear and present danger of a
substantive evil that the state has a right to

prevent. 18 Even prior to the 1935 Constitution,

Justice Maicolm had occasion to stress that it is
a necessary consequence of our republican
institutions and complements the right of free
speech. 19 To paraphrase opinion of Justice
Rutledge speaking for the majority of
the American Supreme Court Thomas v.
Collins, 20 it was not by accident or coincidence
that the right to freedom of speech and of the
press were toupled in a single guarantee with
the and to petition the rights of the people
peaceably to assemble and to petition the
government for redress of grievances. All these
rights, while not Identical, are inseparable. the
every case, therefo re there is a limitation
placed on the exercise of this right, the
judiciary is called upon to examine the effects
of the challenged governmental actuation. The
sole justification for a limitation on the exercise
of this right, so fundamental to the
maintenance of democratic institutions, is the
danger, of a character both grave and
imminent, of a serious evil to public safety,
public morals, public health, or any other
legitimate public interest. 21
2. Nowhere is the rationale that underlies the
freedom of expression and peaceable assembly
better expressed than in this excerpt from an
opinion of Justice Frankfurter: "It must never be
forgotten, however, that the Bill of Rights was
the child of the Enlightenment. Back of the
guaranty of free speech lay faith in the power
of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in
order to avert force and explosions due to
restrictions upon rational modes of
communication that the guaranty of free
speech was given a generous scope. But
utterance in a context of violence can lose its
significance as an appeal to reason and
become part of an instrument of force. Such
utterance was not meant to be sheltered by the
Constitution." 22 What was rightfully stressed is
the abandonment of reason, the utterance,
whether verbal or printed, being in a context of
violence. It must always be remembered that

47

this right likewise provides for a safety valve,

allowing parties the opportunity to give vent to
their-views, even if contrary to the prevailing
climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to
non-peaceful means may be the only
alternative. Nor is this the sole reason for the
expression of dissent. It means more than just
the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as
they are. Its value may lie in the fact that there
may be something worth hearing from the
dissenter. That is to ensure a true ferment of
Ideas. There are, of course, well-defined limits.
What is guaranteed is peaceable assembly.
One may not advocate disorder in the name of
protest, much less preach rebellion under the
cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or
assembly. resort to force is ruled out and
outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed
out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less
disorder will mark the public assembly of the
people to protest against grievances whether
real or imaginary, because on such occasions
feeling is always wrought to a high pitch of
excitement, and the greater the grievance and
the more intense the feeling, the less perfect,
as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." 24 It
bears repeating that for the constitutional right
to be invoked, riotous conduct, injury to
property, and acts of vandalism must be
avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make
a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the
existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the
place where the peace rally would start. The
Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of

Justice Roberts in Hague v. CIO: 25 Whenever

the title of streets and parks may rest, they
have immemorially been held in trust for the
use of the public and, time out of mind, have
been used for purposes of assembly,
communicating thoughts between citizens, and
discussing public questions. Such use of the
streets and public places has, from ancient
times, been a part of the privileges,
immunities, rights, and liberties of citizens. The
privilege of a citizen of the United States to use
the streets and parks for communication of
views on national questions may be regulated
in the interest of all; it is not absolute, but
relative, and must be exercised in
subordination to the general comfort and
convenience, and in consonance with peace
and good order; but it must not, in the guise of
regulation, be abridged or denied. 26 The above
excerpt was quoted with approval in Primicias
v. Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas," 28 a
1915 decision, where this Court categorically
affirmed that plazas or parks and streets are
outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to
such plaza "being a promenade for public
use," 29 which certainly is not the only purpose
that it could serve. To repeat, there can be no
valid reason why a permit should not be
granted for the or oposed march and rally
starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to
the use of the streets, to the gates of the US
Embassy, hardly two block-away at the Roxas
Boulevard. Primicias v. Fugoso has resolved any
lurking doubt on the matter. In holding that the
then Mayor Fugoso of the City of Manila should
grant a permit for a public meeting at Plaza
Miranda in Quiapo, this Court categorically
declared: "Our conclusion finds support in the
decision in the case of Willis Cox vs. State of
New Hampshire, 312 U.S., 569. In that case,
the statute of New Hampshire P. L. chap. 145,
section 2, providing that 'no parade or

procession upon any ground abutting thereon,

shall 'De permitted unless a special license
therefor shall first be explained from the
selectmen of the town or from licensing
committee,' was construed by the Supreme
Court of New Hampshire as not conferring upon
the licensing board unfettered discretion to
refuse to grant the license, and held valid. And
the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme
Court, held that 'a statute requiring persons
using the public streets for a parade or
procession to procure a special license therefor
from the local authorities is not an
unconstitutional abridgment of the rights of
assembly or of freedom of speech and press,
where, as the statute is construed by the state
courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a
consideration of the time, place, and manner of
the parade or procession, with a view to
conserving the public convenience and of
affording an opportunity to provide proper
policing, and are not invested with arbitrary
discretion to issue or refuse license, ... " 30 Nor
should the point made by Chief Justice Hughes
in a subsequent portion of the opinion be
ignored, "Civil liberties, as guaranteed by the
Constitution, imply the existence of an
organized society maintaining public order
without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority
of a municipality to impose regulations in order
to assure the safety and convenience of the
people in the use of public highways has never
been regarded as inconsistent with civil
liberties but rather as one of the means of
safeguarding the good order upon which they
ultimately depend. The control of travel on the
streets of cities is the most familiar illustration
of this recognition of social need. Where a
restriction of the use of highways in that
relation is designed to promote the public
convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some

48

civil right which in other circumstances would

be entitled to protection." 31
5. There is a novel aspect to this case, If the
rally were confined to Luneta, no question, as
noted, would have arisen. So, too, if the march
would end at another park. As previously
mentioned though, there would be a short
program upon reaching the public space
between the two gates of the United States
Embassy at Roxas Boulevard. That would be
followed by the handing over of a petition
based on the resolution adopted at the closing
session of the Anti-Bases Coalition. The
Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in
1961. It was concurred in by the then Philippine
Senate on May 3, 1965 and the instrument of
ratification was signed by the President on
October 11, 1965, and was thereafter
deposited with the Secretary General of the
United Nations on November 15. As of that
date then, it was binding on the Philippines.
The second paragraph of the Article 22 reads:
"2. The receiving State is under a special duty
to take appropriate steps to protect the
premises of the mission against any intrusion
or damage and to prevent any disturbance of
the peace of the mission or impairment of its
dignity. " 32 The Constitution "adopts the
generally accepted principles of international
law as part of the law of the land. ..." 33 To the
extent that the Vienna Convention is a
restatement of the generally accepted
principles of international law, it should be a
part of the law of the land. 34 That being the
case, if there were a clear and present danger
of any intrusion or damage, or disturbance of
the peace of the mission, or impairment of its
dignity, there would be a justification for the
denial of the permit insofar as the terminal
point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No.
7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from
any foreign mission or chancery and for other

purposes. Unless the ordinance is nullified, or

declared ultra vires, its invocation as a defense
is understandable but not decisive, in view of
the primacy accorded the constitutional rights
of free speech and peaceable assembly. Even if
shown then to be applicable, that question the
confronts this Court.
6. There is merit to the observation that except
as to the novel aspects of a litigation, the
judgment must be confined within the limits of
previous decisions. The law declared on past
occasions is, on the whole, a safe guide, So it
has been here. Hence, as noted, on the
afternoon of the hearing, October 25, 1983,
this Court issued the minute resolution granting
the mandatory injunction allowing the
proposed march and rally scheduled for the
next day. That conclusion was inevitable ill the
absence of a clear and present danger of a
substantive, evil to a legitimate public interest.
There was no justification then to deny the
exercise of the constitutional rights of tree
speech and peaceable assembly. These rights
are assured by our Constitution and the
Universal Declaration of Human Rights. 35 The
participants to such assembly, composed
primarily of those in attendance at the
International Conference for General
Disbarmament, World Peace and the Removal
of All Foreign Military Bases would start from
the Luneta. proceeding through Roxas
Boulevard to the gates of the United States
Embassy located at the same street. To repeat,
it is settled law that as to public places,
especially so as to parks and streets, there is
freedom of access. Nor is their use dependent
on who is the applicant for the permit, whether
an individual or a group. If it were, then the
freedom of access becomes discriminatory
access, giving rise to an equal protection
question. The principle under American
doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the
rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices
under which the meeting is held but as to its

purpose; not as to The relations of the

speakers, but whether their utterances
transcend the bounds of the freedom of speech
which the Constitution protects." 36 There could
be danger to public peace and safety if such a
gathering were marked by turbulence. That
would deprive it of its peaceful character. Even
then, only the guilty parties should be held
accountable. It is true that the licensing official,
here respondent Mayor, is not devoid of
discretion in determining whether or not a
permit would be granted. It is not, however,
unfettered discretion. While prudence requires
that there be a realistic appraisal not of what
may possibly occur but of what may probably
occur, given all the relevant circumstances, still
the assumption especially so where the
assembly is scheduled for a specific public
place is that the permit must be for the
assembly being held there. The exercise of
such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is
not to be "abridged on the plea that it may be
exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on
the belief that Navarro v.
Villegas 38 and Pagkakaisa ng Manggagawang
Pilipino (PMP.) v. Bagatsing, 39 called for
application. While the General rule is that a
permit should recognize the right of the
applicants to hold their assembly at a public
place of their choice, another place may be
designated by the licensing authority if it be
shown that there is a clear and present danger
of a substantive evil if no such change were
made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the
clear and present danger test was satisfied.
The present situation is quite different. Hence
the decision reached by the Court. The mere
assertion that subversives may infiltrate the
ranks of the demonstrators does not suffice.
Not that it should be overlooked. There was in
this case, however, the assurance of General
Narciso Cabrera, Superintendent, Western
Police District, Metropolitan Police Force, that

49

the police force is in a position to cope with

such emergency should it arise That is to
comply with its duty to extend protection to the
participants of such peaceable assembly. Also
from him came the commendable admission
that there were the least five previous
demonstrations at the Bayview hotel Area and
Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It
was made clear by petitioner, through counsel,
that no act offensive to the dignity of the
United States Mission in the Philippines would
take place and that, as mentioned at the outset
of this opinion, "all the necessary steps would
be taken by it 'to ensure a peaceful march and
rally.' " 40 Assistant Solicitor General
Montenegro expressed the view that the
presence of policemen may in itself be a
provocation. It is a sufficient answer that they
should stay at a discreet distance, but ever
ready and alert to cope with any contingency.
There is no need to repeat what was pointed
out by Chief Justice Hughes in Cox that
precisely, it is the duty of the city authorities to
provide the proper police protection to those
exercising their right to peaceable assembly
and freedom of expression.
8. By way of a summary The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public place
where and the time when it will take place. If it
were a private place, only the consent of the
owner or the one entitled to its legal
possession is required. Such application should
be filed well ahead in time to enable the public
official concerned to appraise whether there
may be valid objections to the grant of the
permit or to its grant but at another public
place. It is an indispensable condition to such
refusal or modification that the clear and
present danger test be the standard for the
decision reached. If he is of the view that there
is such an imminent and grave danger of a
substantive evil, the applicants must be heard
on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to

them at the earliest opportunity. Thus if so

minded, then, can have recourse to the proper
judicial authority. Free speech and peaceable
assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly
stressed that on the judiciary, even more so
than on the other departments rests the
grave and delicate responsibility of assuring
respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase
can, of course, dispense with what has been so
felicitiously termed by Justice Holmes "as the
sovereign prerogative of judgment."
Nonetheless, the presumption must be to
incline the weight of the scales of justice on the
side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the
extent that there may be inconsistencies
between this resolution and that of Navarro v.
Villegas, that case is pro tantomodified. So it
was made clear in the original resolution of
October 25, 1983.

Justices Makasiar and Plana certainly cannot be

summarily brushed aside. The high estate
accorded the rights to free speech and
peaceable assembly demands nothing less.

9. Respondent Mayor posed the issue of the

applicability of Ordinance No. 7295 of the City
of Manila prohibiting the holding or staging of
rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be
admitted that it finds support In the previously
quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing,
however, that the distance between the
chancery and the embassy gate is less than
500 feet. Even if it could be shown that such a
condition is satisfied. it does not follow that
respondent Mayor could legally act the way he
did. The validity of his denial of the permit
sought could still be challenged. It could be
argued that a case of unconstitutional
application of such ordinance to the exercise of
the right of peaceable assembly presents itself.
As in this case there was no proof that the
distance is less than 500 feet, the need to pass
on that issue was obviated, Should it come,
then the qualification and observation of

WHEREFORE, the mandatory injunction prayed

for is granted. No costs.

10. Ordinarily, the remedy in cases of this

character is to set aside the denial or the
modification of the permit sought and order the
respondent official, to grant it. Nonetheless, as
there was urgency in this case, the proposed
march and rally being scheduled for the next
day after the hearing, this Court. in the
exercise of its conceded authority, granted the
mandatory injunction in the resolution of
October 25, 1983. It may be noted that the
peaceful character of the peace march and
rally on October 26 was not marred by any
untoward incident. So it has been in other
assemblies held elsewhere. It is quite
reassuring such that both on the part of the
national government and the citizens, reason
and moderation have prevailed. That is as it
should be.

Concepcion, Jr., Guerrero, Melencio-Herrera,

Escolin, Relova and Gutierrez, , Jr.,JJ., concur.
De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court
reaffirms the doctrine of Primicias vs.
Fugoso 1 that "the right to freedom of speech
and to peacefully assemble and petition the
government for redress of grievances are
fundamental personal rights of the people
recognized and guaranteed by the
constitutions of democratic countries" and that

50

the city or town mayors are not conferred "the

power to refuse to grant the permit, but only
the discretion, in issuing the permit, to
determine or specify the streets or public
places where the parade or procession may
pass or the meeting may be held." The most
recent graphic demonstration of what this
great right of peaceful assembly and petition
for redress of grievances could accomplish was
the civil rights march on Washington twenty
years ago under the late assassinated black
leader Martin Luther King, Jr. (whose birthday
has now been declared an American national
holiday) which subpoenaed the conscience of
the nation," and awakened the conscience of
millions of previously indifferent Americans and
eventually (after many disorders and riots yet
to come) was to put an end to segregation and
discrimination against the American Negro.
The procedure for the securing of such permits
for peaceable assembly is succintly set forth in
the summary given by the Court Justice in
paragraph 8 of the Court's opinion, with the
injunction that "the presumption must be to
incline the weight of the scales of justice on the
side of such rights, enjoying as they do,
precedence and primacy," The exception of the
clear and present danger rule, which alone
would warrant a limitation of these
fundamental rights, is therein restated in
paragraph 1, thus: "The sole justification for a
limitation on the exercise of this right, so
fundamental to the maintenance of democratic
institutions, is the danger, of a character both
grave and imminent, of a serious evil to public
safety, public morals, public health, or any
other legitimate public interest. "
It bears emphasis that the burden to show the
existence of grave and imminent danger that
would justify adverse action on the application
lies on the mayor as licensing authority. There
must be objective and convincing, not
subjective or conjectural proof of the existence
of such clear and present danger. As stated in
our Resolution of October 25, 1983, which

granted the mandatory injunction as prayed

for, "It is essential for the validity of a denial of
a permit which amounts to a previous restraint
or censorship that the licensing authority does
not rely solely on his own appraisal of what
public welfare, peace or safety may require. To
justify such a limitation there must be proof of
such weight and sufficiency to satisfy the clear
and present danger test. The possibility that
subversives may infiltrate the ranks of the
demonstrators is not enough." As stated by
Justice Brandeis in his concurring opinion
in Whitney vs. California. 2 t.hqw
Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men
feared witches and burned women. It is the
function of speech to free men from the
bondage of irrational fears. To justify
suppression of free speech there must be
reasonable ground to fear that serious evil will
result if free speech is practiced. There must be
reasonable ground to believe that the danger
apprehended is imminent. There must be
reasonable ground to believe that the evil to be
prevented is a serious one * * *.
Those who won our independence by revolution
were not cowards. They did not fear political
change. They did not exalt order at the cost of
liberty. * * *
Moreover, even imminent danger cannot justify
resort to prohibition of these functions essential
(for) effective democracy, unless the evil
apprehended is relatively serious. Prohibition of
free speech and assembly is a measure so
stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to
result in some violence or in destruction of
property is not enough to justify its
suppression. There must be the probability of
serious injury to the state. Among freemen the
deterrents ordinarily to be applied to prevent
crimes are education and punishment for
violations of the law, not abridgment of the

rights of free speech and assembly. (Emphasis

supplied)
The Court's opinion underscores that the
exercise of the right is not to be "abridged on
the plea that it may be exercised in some other
place" (paragraph 6), and that "it is the duty of
the city authorities to provide the proper police
protection to those exercising their right to
peaceable assembly and freedom of
expression," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs.
Committee for Industrial Organization 3 cited in
Fugoso is worth repeating: t.hqw
* * * Wherever the title of streets and parks
may rest, they have immemorially been held in
trust for the use of the public and, time out of
mind, have been used for purposes of
assembly, communicating thoughts between
citizens, and discussing public questions. Such
use of the streets and public places has, from
ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The
privilege of a citizen * * * to use the streets and
parks for communication of views on national
questions may be regulated in the interest of
all; it is not absolute, but relative, and must be
exercised in subordination to the general
comfort and convenience, and in consonance
with peace and good order; but it must not, in
the guise of regulation, be abridged or denied.
We think the court below was right in holding
the ordinance quoted in Note I void upon its
face. It does not make comfort or convenience
in the use of streets or parks the standard of
official action. It enables the Director of Safety
to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or
disorderly assemblage. It can thus, as the
record discloses, be made theinstrument of
arbitrary suppression of free expression of
views on national affairs for the prohibition of
all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official
suppression of the privilege cannot be made a

51

substitute for the duty to maintain order in

connection with the exercise of the right.
(Emphasis supplied)
Needless to say, the leaders of the peaceable
assembly should take all the necessary
measures to ensure a peaceful march and
assembly and to avoid the possibility of
infiltrators and troublemakers disrupting the
same, concommitantly with the duty of the
police to extend protection to the participants
"staying at a discreet distance, but ever ready
and alert to perform their duty." But should any
disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former
Chief Justice Ricardo Paras' injunction in his
concurring opinion inFugoso, citing the 1907
case of U.S. vs. Apurado, 4 that such instances
of "disorderly conduct by individual members
of a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and
tumultuous rising against the authorities" and
render illusory the right of peaceable assembly,
thus: t.hqw
It is rather to be expected that more or less
disorder will mark the public assembly of the
people to protest against grievances whether
real or imaginary, because on such occasions
feeling is always wrought to a high pitch of
excitement, and the greater the grievance and
the more intense the feeling, the less perfect,
as a rule, will the disciplinary control of the
leaders over their irresponsible followers. But if
the prosecution be permitted to seize upon
every instance of such disorderly conduct by
individual members of a crowd as an excuse to
characterize the assembly as a seditious and
tumultous rising against the authorities, 'then
the right to assemble and to petition for
redress of grievances would become a delusion
and snare and the attempt to exercise it on the
most righteous occasion and in the most
peaceable manner would expose all those who
took part therein to the severest and most
unmerited punishment, if the purposes which
they sought to attain did not happen to be

pleasing to the prosecuting authorities. If

instances of disorderly conduct occur on such
occasions, the guilty individuals should be
sought out and punished therefor. (Emphasis
supplied).
As it turned out, the demonstration was held on
October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by
the organizers (like at least five previous
peaceful demonstrations in the area). However,
even if there had been any incidents of
disorder, this would in no way show the Court's
mandatory injunction to have been wrongfully
issued. The salutary desire on the part of
respondent to prevent disorder cannot be
pursued by the unjustified denial and
suppression of the people's basic rights, which
would thereby turn out to be mere paper rights.

The main opinion yields the implication that a

rally or demonstration made within 500 feet
from the chancery of a foreign embassy would
be banned for coming within the terms of the
prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a
treaty obligation of the Philippines under the
1961 Vienna Convention on Diplomatic
Relations.
In my view, without saying that the Ordinance
is obnoxious per se to the constitution, it
cannot be validly invoked whenever its
application would collide with a constitutionally
guaranteed right such as freedom of assembly
and/or expression, as in the case at bar,
regardless of whether the chancery of any
foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.
AQUINO, J., dissenting:

MAKASIAR, J., concurring:

With the justification that in case of conflict,
the Philippine Constitution particularly the
Bill of Rights should prevail over the Vienna
Convention.

Voted to dismiss the petition on the ground

that the holding of the rally in front of the US
Embassy violates Ordinance No. 7295 of the
City of Manila.

ABAD SANTOS, J., concurring:

Separate Opinions

To add anything to the learned opinion of the

Chief Justice is like bringing coal to Newcastle, I
just want to state for the record that I voted for
the issuance ex-parte of a preliminary
mandatory injunction.

TEEHANKEE, J., concurring:

PLANA, J., concurring:

On the whole, I concur in the learned views of
the distinguished Chief Justice. I would like
however to voice a reservation regarding
Ordinance No. 7295 of the City of Manila which
has been invoked by the respondent.

The Chief Justice's opinion of the Court

reaffirms the doctrine of Primicias vs.
Fugoso 1 that "the right to freedom of speech
and to peacefully assemble and petition the
government for redress of grievances are
fundamental personal rights of the people
recognized and guaranteed by the
constitutions of democratic countries" and that
the city or town mayors are not conferred "the
power to refuse to grant the permit, but only
the discretion, in issuing the permit, to

52

determine or specify the streets or public

places where the parade or procession may
pass or the meeting may be held." The most
recent graphic demonstration of what this
great right of peaceful assembly and petition
for redress of grievances could accomplish was
the civil rights march on Washington twenty
years ago under the late assassinated black
leader Martin Luther King, Jr. (whose birthday
has now been declared an American national
holiday) which subpoenaed the conscience of
the nation," and awakened the conscience of
millions of previously indifferent Americans and
eventually (after many disorders and riots yet
to come) was to put an end to segregation and
discrimination against the American Negro.
The procedure for the securing of such permits
for peaceable assembly is succintly set forth in
the summary given by the Court Justice in
paragraph 8 of the Court's opinion, with the
injunction that "the presumption must be to
incline the weight of the scales of justice on the
side of such rights, enjoying as they do,
precedence and primacy," The exception of the
clear and present danger rule, which alone
would warrant a limitation of these
fundamental rights, is therein restated in
paragraph 1, thus: "The sole justification for a
limitation on the exercise of this right, so
fundamental to the maintenance of democratic
institutions, is the danger, of a character both
grave and imminent, of a serious evil to public
safety, public morals, public health, or any
other legitimate public interest. "
It bears emphasis that the burden to show the
existence of grave and imminent danger that
would justify adverse action on the application
lies on the mayor as licensing authority. There
must be objective and convincing, not
subjective or conjectural proof of the existence
of such clear and present danger. As stated in
our Resolution of October 25, 1983, which
granted the mandatory injunction as prayed
for, "It is essential for the validity of a denial of
a permit which amounts to a previous restraint

or censorship that the licensing authority does

not rely solely on his own appraisal of what
public welfare, peace or safety may require. To
justify such a limitation there must be proof of
such weight and sufficiency to satisfy the clear
and present danger test. The possibility that
subversives may infiltrate the ranks of the
demonstrators is not enough." As stated by
Justice Brandeis in his concurring opinion
in Whitney vs. California. 2 t.hqw
Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men
feared witches and burned women. It is the
function of speech to free men from the
bondage of irrational fears. To justify
suppression of free speech there must be
reasonable ground to fear that serious evil will
result if free speech is practiced. There must be
reasonable ground to believe that the danger
apprehended is imminent. There must be
reasonable ground to believe that the evil to be
prevented is a serious one * * *.
Those who won our independence by revolution
were not cowards. They did not fear political
change. They did not exalt order at the cost of
liberty. * * *
Moreover, even imminent danger cannot justify
resort to prohibition of these functions essential
(for) effective democracy, unless the evil
apprehended is relatively serious. Prohibition of
free speech and assembly is a measure so
stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to
result in some violence or in destruction of
property is not enough to justify its
suppression. There must be the probability of
serious injury to the state. Among freemen the
deterrents ordinarily to be applied to prevent
crimes are education and punishment for
violations of the law, not abridgment of the
rights of free speech and assembly. (Emphasis
supplied)

The Court's opinion underscores that the

exercise of the right is not to be "abridged on
the plea that it may be exercised in some other
place" (paragraph 6), and that "it is the duty of
the city authorities to provide the proper police
protection to those exercising their right to
peaceable assembly and freedom of
expression," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs.
Committee for Industrial Organization 3 cited in
Fugoso is worth repeating: t.hqw
* * * Wherever the title of streets and parks
may rest, they have immemorially been held in
trust for the use of the public and, time out of
mind, have been used for purposes of
assembly, communicating thoughts between
citizens, and discussing public questions. Such
use of the streets and public places has, from
ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The
privilege of a citizen * * * to use the streets and
parks for communication of views on national
questions may be regulated in the interest of
all; it is not absolute, but relative, and must be
exercised in subordination to the general
comfort and convenience, and in consonance
with peace and good order; but it must not, in
the guise of regulation, be abridged or denied.
We think the court below was right in holding
the ordinance quoted in Note I void upon its
face. It does not make comfort or convenience
in the use of streets or parks the standard of
official action. It enables the Director of Safety
to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or
disorderly assemblage. It can thus, as the
record discloses, be made theinstrument of
arbitrary suppression of free expression of
views on national affairs for the prohibition of
all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official
suppression of the privilege cannot be made a
substitute for the duty to maintain order in
connection with the exercise of the right.
(Emphasis supplied)

53

Needless to say, the leaders of the peaceable

assembly should take all the necessary
measures to ensure a peaceful march and
assembly and to avoid the possibility of
infiltrators and troublemakers disrupting the
same, concommitantly with the duty of the
police to extend protection to the participants
"staying at a discreet distance, but ever ready
and alert to perform their duty." But should any
disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former
Chief Justice Ricardo Paras' injunction in his
concurring opinion inFugoso, citing the 1907
case of U.S. vs. Apurado, 4 that such instances
of "disorderly conduct by individual members
of a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and
tumultuous rising against the authorities" and
render illusory the right of peaceable assembly,
thus: t.hqw
It is rather to be expected that more or less
disorder will mark the public assembly of the
people to protest against grievances whether
real or imaginary, because on such occasions
feeling is always wrought to a high pitch of
excitement, and the greater the grievance and
the more intense the feeling, the less perfect,
as a rule, will the disciplinary control of the
leaders over their irresponsible followers. But if
the prosecution be permitted to seize upon
every instance of such disorderly conduct by
individual members of a crowd as an excuse to
characterize the assembly as a seditious and
tumultous rising against the authorities, 'then
the right to assemble and to petition for
redress of grievances would become a delusion
and snare and the attempt to exercise it on the
most righteous occasion and in the most
peaceable manner would expose all those who
took part therein to the severest and most
unmerited punishment, if the purposes which
they sought to attain did not happen to be
pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such
occasions, the guilty individuals should be

sought out and punished therefor. (Emphasis

supplied).
As it turned out, the demonstration was held on
October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by
the organizers (like at least five previous
peaceful demonstrations in the area). However,
even if there had been any incidents of
disorder, this would in no way show the Court's
mandatory injunction to have been wrongfully
issued. The salutary desire on the part of
respondent to prevent disorder cannot be
pursued by the unjustified denial and
suppression of the people's basic rights, which
would thereby turn out to be mere paper rights.

be banned for coming within the terms of the

prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a
treaty obligation of the Philippines under the
1961 Vienna Convention on Diplomatic
Relations.
In my view, without saying that the Ordinance
is obnoxious per se to the constitution, it
cannot be validly invoked whenever its
application would collide with a constitutionally
guaranteed right such as freedom of assembly
and/or expression, as in the case at bar,
regardless of whether the chancery of any
foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.

MAKASIAR, J., concurring:

AQUINO, J., dissenting:

With the justification that in case of conflict,

the Philippine Constitution particularly the
Bill of Rights should prevail over the Vienna
Convention.

Voted to dismiss the petition on the ground

that the holding of the rally in front of the US
Embassy violates Ordinance No. 7295 of the
City of Manila.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the
Chief Justice is like bringing coal to Newcastle, I
just want to state for the record that I voted for
the issuance ex-parte of a preliminary
mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of
the distinguished Chief Justice. I would like
however to voice a reservation regarding
Ordinance No. 7295 of the City of Manila which
has been invoked by the respondent.
The main opinion yields the implication that a
rally or demonstration made within 500 feet
from the chancery of a foreign embassy would

54

[G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA
DOMINIQUE COSETENG, as members of
the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER ARROYO
as members of the House of
Representatives and as taxpayers;
NICANOR P. PERLAS and HORACIO R.
MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC
PROTECTIONISM ASSOCIATION, CENTER
FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN
FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG
MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in
representation of various taxpayers and
as non-governmental
organizations, petitioners, vs. EDGARDO
ANGARA, ALBERTO ROMULO, LETICIA
RAMOS-SHAHANI, HEHERSON ALVAREZ,
AGAPITO AQUINO, RODOLFO BIAZON,
NEPTALI GONZALES, ERNESTO HERRERA,
JOSE LINA, GLORIA MACAPAGAL-ARROYO,
ORLANDO MERCADO, BLAS OPLE, JOHN
OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD
and FREDDIE WEBB, in their respective
capacities as members of the Philippine
Senate who concurred in the ratification
by the President of the Philippines of the
Agreement Establishing the World Trade
Organization; SALVADOR ENRIQUEZ, in his
capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in
her capacity as National Treasurer;
RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO
SEBASTIAN, in his capacity as Secretary
of Agriculture; ROBERTO DE OCAMPO, in
his capacity as Secretary of Finance;
ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and

TEOFISTO T. GUINGONA, in his capacity as

Executive Secretary, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the
World Trade Organization, abetted by the
membership thereto of the vast majority of
countries has revolutionized international
business and economic relations amongst
states. It has irreversibly propelled the world
towards trade liberalization and economic
globalization. Liberalization, globalization,
deregulation and privatization, the thirdmillennium buzz words, are ushering in a new
borderless world of business by sweeping away
as mere historical relics the heretofore
traditional modes of promoting and protecting
national economies like tariffs, export
subsidies, import quotas, quantitative
restrictions, tax exemptions and currency
controls. Finding market niches and becoming
the best in specific industries in a marketdriven and export-oriented global scenario are
replacing age-old beggar-thy-neighbor policies
that unilaterally protect weak and inefficient
domestic producers of goods and services. In
the words of Peter Drucker, the well-known
management guru, Increased participation in
the world economy has become the key to
domestic economic growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the
devastation wrought by the Second World War,
plans for the establishment of three
multilateral institutions -- inspired by that
grand political body, the United Nations -- were
discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB)
which was to address the rehabilitation and
reconstruction of war-ravaged and later
developing countries; the second, the
International Monetary Fund (IMF) which was to

deal with currency problems; and the third, the

International Trade Organization (ITO), which
was to foster order and predictability in world
trade and to minimize unilateral protectionist
policies that invite challenge, even retaliation,
from other states. However, for a variety of
reasons, including its non-ratification by the
United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT -the General Agreement on Tariffs and
Trade. GATT was a collection of treaties
governing access to the economies of treaty
adherents with no institutionalized body
administering the agreements or dependable
system of dispute settlement.
After half a century and several dizzying rounds
of negotiations, principally the Kennedy Round,
the Tokyo Round and the Uruguay Round, the
world finally gave birth to that administering
body -- the World Trade Organization -- with the
signing of the Final Act in Marrakesh, Morocco
and the ratification of the WTO Agreement by
its members.[1]
Like many other developing countries, the
Philippines joined WTO as a founding member
with the goal, as articulated by President Fidel
V. Ramos in two letters to the Senate (infra), of
improving Philippine access to foreign markets,
especially its major trading partners, through
the reduction of tariffs on its exports,
particularly agricultural and industrial
products. The President also saw in the WTO
the opening of new opportunities for the
services sector x x x, (the reduction of) costs
and uncertainty associated with exporting x x
x, and (the attraction of) more investments into
the country. Although the Chief Executive did
not expressly mention it in his letter, the
Philippines - - and this is of special interest to
the legal profession - - will benefit from the
WTO system of dispute settlement by judicial
adjudication through the independent WTO
settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate
Tribunal.Heretofore, trade disputes were settled

55

mainly through negotiations where solutions

were arrived at frequently on the basis of
relative bargaining strengths, and where
naturally, weak and underdeveloped countries
were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the
Philippines to place nationals and products of
member-countries on the same footing as
Filipinos and local products and (2) that the
WTO intrudes, limits and/or impairs the
constitutional powers of both Congress and the
Supreme Court, the instant petition before this
Court assails the WTO Agreement for violating
the mandate of the 1987 Constitution to
develop a self-reliant and independent national
economy effectively controlled by Filipinos x x x
(to) give preference to qualified Filipinos (and
to) promote the preferential use of Filipino
labor, domestic materials and locally produced
goods.
Simply stated, does the Philippine Constitution
prohibit Philippine participation in worldwide
trade liberalization and economic
globalization? Does it prescribe Philippine
integration into a global economy that is
liberalized, deregulated and privatized? These
are the main questions raised in this petition
for certiorari, prohibition and mandamus under
Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the
concurrence of the Philippine Senate in the
ratification by the President of the Philippines
of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and
(2) for the prohibition of its implementation and
enforcement through the release and utilization
of public funds, the assignment of public
officials and employees, as well as the use of
government properties and resources by
respondent-heads of various executive offices
concerned therewith. This concurrence is
embodied in Senate Resolution No. 97, dated
December 14, 1994.

The Facts
On April 15, 1994, Respondent Rizalino
Navarro, then Secretary of
the Department of Trade and Industry
(Secretary Navarro, for brevity), representing
the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for
brevity).
By signing the Final Act,[2] Secretary Navarro on
behalf of the Republic of the Philippines,
agreed:
(a) to submit, as appropriate, the WTO
Agreement for the consideration of their
respective competent authorities, with a view
to seeking approval of the Agreement in
accordance with their procedures; and
(b) to adopt the Ministerial Declarations and
Decisions.
On August 12, 1994, the members of the
Philippine Senate received a letter dated
August 11, 1994 from the President of the
Philippines,[3] stating among others that the
Uruguay Round Final Act is hereby submitted to
the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the
Philippine Senate received another letter from
the President of the Philippines[4] likewise dated
August 11, 1994, which stated among others
that the Uruguay Round Final Act, the
Agreement Establishing the World Trade
Organization, the Ministerial Declarations and
Decisions, and the Understanding on
Commitments in Financial Services are hereby
submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the
Constitution.
On December 9, 1994, the President of the
Philippines certified the necessity of the

immediate adoption of P.S. 1083, a resolution

entitled Concurring in the Ratification of the
Agreement Establishing the World Trade
Organization.[5]
On December 14, 1994, the Philippine Senate
adopted Resolution No. 97 which Resolved, as
it is hereby resolved, that the Senate concur,
as it hereby concurs, in the ratification by the
President of the Philippines of the Agreement
Establishing the World Trade Organization.
[6]
The text of the WTO Agreement is written on
pages 137 et seq. of Volume I of the 36volumeUruguay Round of Multilateral Trade
Negotiations and includes various agreements
and associated legal instruments (identified in
the said Agreement as Annexes 1, 2 and 3
thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as
follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in
Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment
Measures
Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of
the General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection

56

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in
Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects
of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures
Governing the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the
Philippines signed[7] the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V.
RAMOS, President of the Republic of the
Philippines, after having seen and considered
the aforementioned Agreement Establishing
the World Trade Organization and the
agreements and associated legal instruments
included in Annexes one (1), two (2) and three
(3) of that Agreement which are integral parts
thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the
same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by
the President of the Philippines is composed of
the Agreement Proper and the associated legal
instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are
integral parts thereof.
On the other hand, the Final Act signed by
Secretary Navarro embodies not only the WTO

Agreement (and its integral annexes

aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the
Understanding on Commitments in Financial
Services. In his Memorandum dated May 13,
1996,[8] the Solicitor General describes these
two latter documents as follows:
The Ministerial Decisions and Declarations are
twenty-five declarations and decisions on a
wide range of matters, such as measures in
favor of least developed countries, notification
procedures, relationship of WTO with the
International Monetary Fund (IMF), and
agreements on technical barriers to trade and
on dispute settlement.
The Understanding on Commitments in
Financial Services dwell on, among other
things, standstill or limitations and
qualifications of commitments to existing nonconforming measures, market access, national
treatment, and definitions of non-resident
supplier of financial services, commercial
presence and new financial service.
On December 29, 1994, the present petition
was filed. After careful deliberation on
respondents comment and petitioners reply
thereto, the Court resolved on December 12,
1995, to give due course to the petition, and
the parties thereafter filed their respective
memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in
Geneva, Switzerland, to submit a paper,
hereafter referred to as Bautista Paper,[9] for
brevity, (1) providing a historical background of
and (2) summarizing the said agreements.
During the Oral Argument held on August 27,
1996, the Court directed:
(a) the petitioners to submit the (1) Senate
Committee Report on the matter in controversy
and (2) the transcript of proceedings/hearings
in the Senate; and

(b) the Solicitor General, as counsel for

respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine
adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2)
copies of the multi-volume WTO Agreement
and other documents mentioned in the Final
Act, as soon as possible.
After receipt of the foregoing documents, the
Court said it would consider the case submitted
for resolution. In a Compliance dated
September 16, 1996, the Solicitor General
submitted a printed copy of the 36volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated
October 24, 1996, he listed the various
bilateral or multilateral treaties or international
instruments involving derogation of Philippine
sovereignty. Petitioners, on the other hand,
submitted their Compliance dated January 28,
1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996,
petitioners summarized the issues as follows:
A. Whether the petition presents a political
question or is otherwise not justiciable.
B. Whether the petitioner members of the
Senate who participated in the deliberations
and voting leading to the concurrence are
estopped from impugning the validity of the
Agreement Establishing the World Trade
Organization or of the validity of the
concurrence.
C. Whether the provisions of the Agreement
Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II,
and Secs. 10 and 12, Article XII, all of the 1987
Philippine Constitution.
D. Whether provisions of the Agreement
Establishing the World Trade Organization
unduly limit, restrict and impair Philippine

57

sovereignty specifically the legislative power

which, under Sec. 2, Article VI, 1987 Philippine
Constitution is vested in the Congress of the
Philippines;

3. Whether or not certain provisions of the

Agreement impair the exercise of judicial power
by this Honorable Court in promulgating the
rules of evidence.

E. Whether provisions of the Agreement

Establishing the World Trade Organization
interfere with the exercise of judicial power.

4. Whether or not the concurrence of the

Senate in the ratification by the President of
the Philippines of the Agreement establishing
the World Trade Organization implied rejection
of the treaty embodied in the Final Act.

F. Whether the respondent members of the

Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction
when they voted for concurrence in the
ratification of the constitutionally-infirm
Agreement Establishing the World Trade
Organization.
G. Whether the respondent members of the
Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction
when they concurred only in the ratification of
the Agreement Establishing the World Trade
Organization, and not with the Presidential
submission which included the Final Act,
Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial
Services.

By raising and arguing only four issues against

the seven presented by petitioners, the
Solicitor General has effectively ignored three,
namely: (1) whether the petition presents a
political question or is otherwise not justiciable;
(2) whether petitioner-members of the Senate
(Wigberto E. Taada and Anna Dominique
Coseteng) are estopped from joining this suit;
and (3) whether the respondent-members of
the Senate acted in grave abuse of discretion
when they voted for concurrence in the
ratification of the WTO Agreement. The
foregoing notwithstanding, this Court resolved
to deal with these three issues thus:

On the other hand, the Solicitor General as

counsel for respondents synthesized the
several issues raised by petitioners into the
following:[10]

(1) The political question issue -- being very

fundamental and vital, and being a matter that
probes into the very jurisdiction of this Court to
hear and decide this case -- was deliberated
upon by the Court and will thus be ruled upon
as the first issue;

1. Whether or not the provisions of the

Agreement Establishing the World Trade
Organization and the Agreements and
Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly
contravene or undermine the letter, spirit and
intent of Section 19, Article II and Sections 10
and 12, Article XII of the 1987 Constitution.

(2) The matter of estoppel will not be taken up

because this defense is waivable and the
respondents have effectively waived it by not
pursuing it in any of their pleadings; in any
event, this issue, even if ruled in respondents
favor, will not cause the petitions dismissal as
there are petitioners other than the two
senators, who are not vulnerable to the
defense of estoppel; and

2. Whether or not certain provisions of the

Agreement unduly limit, restrict or impair the
exercise of legislative power by Congress.

(3) The issue of alleged grave abuse of

discretion on the part of the respondent
senators will be taken up as an integral part of
the disposition of the four issues raised by the
Solicitor General.
During its deliberations on the case, the Court
noted that the respondents did not question
the locus standi of petitioners. Hence, they are
also deemed to have waived the benefit of
such issue. They probably realized that grave
constitutional issues, expenditures of public
funds and serious international commitments
of the nation are involved here, and that
transcendental public interest requires that the
substantive issues be met head on and decided
on the merits, rather than skirted or deflected
by procedural matters.[11]
To recapitulate, the issues that will be ruled
upon shortly are:
(1) DOES THE PETITION PRESENT A
JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO
AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
10 AND 12, ARTICLE XII, OF THE PHILIPPINE
CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT
AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR
THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR
INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING
RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN
THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT
IT DID NOT INCLUDE THE FINAL ACT,

58

MINISTERIAL DECLARATIONS AND DECISIONS,

AND THE UNDERSTANDING ON COMMITMENTS
IN FINANCIAL SERVICES?
The First Issue: Does the Court Have
Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine
Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the
legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to
settle the dispute. The question thus posed is
judicial rather than political. The duty (to
adjudicate) remains to assure that the
supremacy of the Constitution is upheld.
[12]
Once a controversy as to the application or
interpretation of a constitutional provision is
raised before this Court (as in the instant case),
it becomes a legal issue which the Court is
bound by constitutional mandate to decide.[13]
The jurisdiction of this Court to adjudicate the
matters[14] raised in the petition is clearly set
out in the 1987 Constitution,[15] as follows:
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
government.
The foregoing text emphasizes the judicial
departments duty and power to strike down
grave abuse of discretion on the part of any
branch or instrumentality of government
including Congress. It is an innovation in our
political law.[16] As explained by former Chief
Justice Roberto Concepcion,[17] the judiciary is
the final arbiter on the question of whether or
not a branch of government or any of its
officials has acted without jurisdiction or in

excess of jurisdiction or so capriciously as to

constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters
of this nature.

Second Issue: The WTO Agreement and

Economic Nationalism

As this Court has repeatedly and firmly

emphasized in many cases,[18] it will not shirk,
digress from or abandon its sacred duty and
authority to uphold the Constitution in matters
that involve grave abuse of discretion brought
before it in appropriate cases, committed by
any officer, agency, instrumentality or
department of the government.

Petitioners vigorously argue that the letter,

spirit and intent of the Constitution mandating
economic nationalism are violated by the socalled parity provisions and national treatment
clauses scattered in various parts not only of
the WTO Agreement and its annexes but also in
the Ministerial Decisions and Declarations and
in the Understanding on Commitments in
Financial Services.

As the petition alleges grave abuse of

discretion and as there is no other plain,
speedy or adequate remedy in the ordinary
course of law, we have no hesitation at all in
holding that this petition should be given due
course and the vital questions raised therein
ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to
raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative
and executive officials. On this, we have no
equivocation.
We should stress that, in deciding to take
jurisdiction over this petition, this Court will not
review the wisdom of the decision of the
President and the Senate in enlisting the
country into the WTO, or pass upon
the merits of trade liberalization as a policy
espoused by said international body. Neither
will it rule on the propriety of the governments
economic policy of reducing/removing tariffs,
taxes, subsidies, quantitative restrictions, and
other import/trade barriers. Rather, it will only
exercise its constitutional duty to determine
whether or not there had been a grave abuse
of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in
ratifying the WTO Agreement and its three
annexes.

This is the lis mota, the main issue, raised by

the petition.

Specifically, the flagship constitutional

provisions referred to are Sec. 19, Article II, and
Secs. 10 and 12, Article XII, of the Constitution,
which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE
POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant
and independent national economy effectively
controlled by Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact
measures that will encourage the formation
and operation of enterprises whose capital is
wholly owned by Filipinos.
In the grant of rights, privileges, and
concessions covering the national economy
and patrimony, the State shall give preference
to qualified Filipinos.

59

xx xx xx xx
Sec. 12. The State shall promote the
preferential use of Filipino labor, domestic
materials and locally produced goods, and
adopt measures that help make them
competitive.
Petitioners aver that these sacred
constitutional principles are desecrated by the
following WTO provisions quoted in their
memorandum:[19]
a) In the area of investment measures
related to trade in goods (TRIMS, for
brevity):
Article 2
National Treatment and Quantitative
Restrictions.
1. Without prejudice to other rights and
obligations under GATT 1994. no Member shall
apply any TRIM that is inconsistent with the
provisions of Article III or Article XI of GATT
1994.
2. An Illustrative list of TRIMS that are
inconsistent with the obligations of general
elimination of quantitative restrictions provided
for in paragraph I of Article XI of GATT 1994 is
contained in the Annex to this
Agreement. (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round,
Legal Instruments, p.22121, emphasis
supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the
obligation of national treatment provided
for in paragraph 4 of Article III of GATT
1994 include those which are mandatory
or enforceable under domestic law or

under administrative rulings, or

compliance with which is necessary to
obtain an advantage, and which require:
(a) the purchase or use by an enterprise of
products of domestic origin or from any
domestic source, whether specified in terms of
particular products, in terms of volume or value
of products, or in terms of proportion of volume
or value of its local production; or
(b) that an enterprises purchases or use of
imported products be limited to an amount
related to the volume or value of local products
that it exports.
2. TRIMS that are inconsistent with the
obligations of general elimination of
quantitative restrictions provided for in
paragraph 1 of Article XI of GATT 1994 include
those which are mandatory or enforceable
under domestic laws or under administrative
rulings, or compliance with which is necessary
to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products
used in or related to the local production that it
exports;
(b) the importation by an enterprise of products
used in or related to its local production by
restricting its access to foreign exchange
inflows attributable to the enterprise; or
(c) the exportation or sale for export specified
in terms of particular products, in terms of
volume or value of products, or in terms of a
preparation of volume or value of its local
production. (Annex to the Agreement on TradeRelated Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p.22125, emphasis
supplied).
The paragraph 4 of Article III of GATT 1994
referred to is quoted as follows:
The products of the territory of any contracting
party imported into the territory of any other

contracting party shall be accorded

treatment no less favorable than that
accorded to like products of national
origin in respect of laws, regulations and
requirements affecting their internal sale,
offering for sale, purchase, transportation,
distribution or use. the provisions of this
paragraph shall not prevent the application of
differential internal transportation charges
which are based exclusively on the economic
operation of the means of transport and not on
the nationality of the product. (Article III, GATT
1947, as amended by the Protocol Modifying
Part II, and Article XXVI of GATT, 14 September
1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and
Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of
intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals
of other Members treatment no less
favourable than that it accords to its own
nationals with regard to the protection of
intellectual property... (par. 1, Article 3,
Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay
Round, Legal Instruments, p.25432 (emphasis
supplied)
(c) In the area of the General Agreement
on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and
subject to any conditions and qualifications set
out therein, each Member shall accord to
services and service suppliers of any other
Member, in respect of all measures affecting
the supply of services, treatment no less
favourable than it accords to its own like
services and service suppliers.

60

2. A Member may meet the requirement of

paragraph I by according to services and
service suppliers of any other Member, either
formally identical treatment or formally
different treatment to that it accords to its own
like services and service suppliers.
3. Formally identical or formally different
treatment shall be considered to be less
favourable if it modifies the conditions of
completion in favour of services or service
suppliers of the Member compared to like
services or service suppliers of any other
Member. (Article XVII, General Agreement on
Trade in Services, Vol. 28, Uruguay Round Legal
Instruments, p.22610 emphasis supplied).
It is petitioners position that the foregoing
national treatment and parity provisions of the
WTO Agreement place nationals and products
of member countries on the same footing as
Filipinos and local products, in contravention of
the Filipino First policy of the Constitution. They
allegedly render meaningless the phrase
effectively controlled by Filipinos. The
constitutional conflict becomes more manifest
when viewed in the context of the clear duty
imposed on the Philippines as a WTO member
to ensure the conformity of its laws, regulations
and administrative procedures with its
obligations as provided in the annexed
agreements.[20] Petitioners further argue that
these provisions contravene constitutional
limitations on the role exports play in national
development and negate the preferential
treatment accorded to Filipino labor, domestic
materials and locally produced goods.
On the other hand, respondents through the
Solicitor General counter (1) that such
Charter provisions are not self-executing and
merely set out general policies; (2) that these
nationalistic portions of the Constitution
invoked by petitioners should not be read in
isolation but should be related to other relevant
provisions of Art. XII, particularly Secs. 1 and
13 thereof; (3) that read properly, the cited

WTO clauses do not conflict with the

Constitution; and (4) that the WTO Agreement
contains sufficient provisions to protect
developing countries like the Philippines from
the harshness of sudden trade liberalization.
We shall now discuss and rule on these
arguments.
Declaration of Principles Not SelfExecuting
By its very title, Article II of the Constitution is a
declaration of principles and state policies. The
counterpart of this article in the 1935
Constitution[21] is called the basic political creed
of the nation by Dean Vicente Sinco.[22] These
principles in Article II are not intended to be
self-executing principles ready for enforcement
through the courts.[23] They are used by the
judiciary as aids or as guides in the exercise of
its power of judicial review, and by the
legislature in its enactment of laws. As held in
the leading case of Kilosbayan, Incorporated
vs. Morato,[24] the principles and state policies
enumerated in Article II and some sections of
Article XII are not self-executing provisions, the
disregard of which can give rise to a cause of
action in the courts.They do not embody
judicially enforceable constitutional rights but
guidelines for legislation.
In the same light, we held in Basco vs.
Pagcor[25] that broad constitutional principles
need legislative enactments to implement
them, thus:

On petitioners allegation that P.D. 1869 violates

Sections 11 (Personal Dignity) 12 (Family) and
13 (Role of Youth) of Article II; Section 13
(Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987
Constitution, suffice it to state also that these
are merely statements of principles and
policies. As such, they are basically not selfexecuting, meaning a law should be passed by
Congress to clearly define and effectuate such
principles.
In general, therefore, the 1935 provisions were
not intended to be self-executing principles
ready for enforcement through the courts. They
were rather directives addressed to the
executive and to the legislature. If the
executive and the legislature failed to heed the
directives of the article, the available remedy
was not judicial but political. The electorate
could express their displeasure with the failure
of the executive and the legislature through the
language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an
alleged infringement of broad constitutional
principles are sourced from basic
considerations of due process and the lack of
judicial authority to wade into the uncharted
ocean of social and economic policy
making. Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr.,
[26]
explained these reasons as follows:
My suggestion is simply that petitioners must,
before the trial court, show a more specific
legal right -- a right cast in language of a
significantly lower order of generality than
Article II (15) of the Constitution -- that is or
may be violated by the actions, or failures to
act, imputed to the public respondent by
petitioners so that the trial court can validly
render judgment granting all or part of the
relief prayed for. To my mind, the court should
be understood as simply saying that such a
more specific legal right or rights may well
exist in our corpus of law, considering the

61

general policy principles found in the

Constitution and the existence of the Philippine
Environment Code, and that the trial court
should have given petitioners an effective
opportunity so to demonstrate, instead of
aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right
which is an essential component of a cause of
action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at
least two (2) reasons.One is that unless the
legal right claimed to have been violated or
disregarded is given specification in operational
terms, defendants may well be unable to
defend themselves intelligently and effectively;
in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration -where a specific violation of law or applicable
regulation is not alleged or proved, petitioners
can be expected to fall back on the expanded
conception of judicial power in the second
paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Emphases supplied)
When substantive standards as general as the
right to a balanced and healthy ecology and
the right to health are combined with remedial
standards as broad ranging as a grave abuse of
discretion amounting to lack or excess of
jurisdiction, the result will be, it is respectfully
submitted, to propel courts into the uncharted
ocean of social and economic policy making. At

least in respect of the vast area of

environmental protection and management,
our courts have no claim to special technical
competence and experience and professional
qualification. Where no specific, operable
norms and standards are shown to exist, then
the policy making departments -- the
legislative and executive departments -- must
be given a real and effective opportunity to
fashion and promulgate those norms and
standards, and to implement them before the
courts should intervene.
Economic Nationalism Should Be Read
with Other Constitutional Mandates to
Attain Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article
XII, apart from merely laying down general
principles relating to the national economy and
patrimony, should be read and understood in
relation to the other sections in said article,
especially Secs. 1 and 13 thereof which read:
Section 1. The goals of the national economy
are a more equitable distribution of
opportunities, income, and wealth; a sustained
increase in the amount of goods and services
produced by the nation for the benefit of the
people; and an expanding productivity as the
key to raising the quality of life for all,
especially the underprivileged.
The State shall promote industrialization and
full employment based on sound agricultural
development and agrarian reform, through
industries that make full and efficient use of
human and natural resources, and which are
competitive in both domestic and foreign
markets. However, the State shall protect
Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the
economy and all regions of the country shall be
given optimum opportunity to develop. x x x
xxxxxxxxx

Sec. 13. The State shall pursue a trade policy

that serves the general welfare and utilizes all
forms and arrangements of exchange on the
basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1
lays down the basic goals of national economic
development, as follows:
1. A more equitable distribution of
opportunities, income and wealth;
2. A sustained increase in the amount of goods
and services provided by the nation for the
benefit of the people; and
3. An expanding productivity as the key to
raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution
then ordains the ideals of economic
nationalism (1) by expressing preference in
favor of qualified Filipinos in the grant of rights,
privileges and concessions covering the
national economy and patrimony[27] and in the
use of Filipino labor, domestic materials and
locally-produced goods; (2) by mandating the
State to adopt measures that help make them
competitive;[28] and (3) by requiring the State to
develop a self-reliant and independent national
economy effectively controlled by Filipinos.
[29]
In similar language, the Constitution takes
into account the realities of the outside world
as it requires the pursuit of a trade policy that
serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of
equality and reciprocity;[30] and speaks of
industries which are competitive in both
domestic and foreign markets as well as of the
protection of Filipino enterprises against unfair
foreign competition and trade practices.
It is true that in the recent case of Manila
Prince Hotel vs. Government Service Insurance
System, et al.,[31] this Court held that Sec. 10,
second par., Art. XII of the 1987 Constitution is
a mandatory, positive command which is

62

complete in itself and which needs no further

guidelines or implementing laws or rules for its
enforcement. From its very words the provision
does not require any legislation to put it in
operation. It is per se judicially
enforceable. However, as the constitutional
provision itself states, it is enforceable only in
regard to the grants of rights, privileges and
concessions covering national economy and
patrimony and not to every aspect of trade and
commerce. It refers to exceptions rather than
the rule. The issue here is not whether this
paragraph of Sec. 10 of Art. XII is self-executing
or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the
Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO
Agreement. And we hold that there are.
All told, while the Constitution indeed
mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same
time, it recognizes the need for business
exchange with the rest of the world on the
bases of equality and reciprocity and limits
protection of Filipino enterprises only against
foreign competition and trade practices that
are unfair.[32] In other words, the Constitution
did not intend to pursue an isolationist policy. It
did not shut out foreign investments, goods
and services in the development of the
Philippine economy. While the Constitution
does not encourage the unlimited entry of
foreign goods, services and investments into
the country, it does not prohibit them either. In
fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on
foreign competition that is unfair.
WTO Recognizes Need to Protect Weak
Economies
Upon the other hand, respondents maintain
that the WTO itself has some built-in
advantages to protect weak and developing
economies, which comprise the vast majority of
its members. Unlike in the UN where major

states have permanent seats and veto powers

in the Security Council, in the WTO, decisions
are made on the basis of sovereign equality,
with each members vote equal in weight to
that of any other. There is no WTO equivalent
of the UN Security Council.
WTO decides by consensus whenever possible,
otherwise, decisions of the Ministerial
Conference and the General Council shall be
taken by the majority of the votes cast, except
in cases of interpretation of the Agreement or
waiver of the obligation of a member which
would require three fourths vote. Amendments
would require two thirds vote in
general. Amendments to MFN provisions and
the Amendments provision will require assent
of all members. Any member may withdraw
from the Agreement upon the expiration of six
months from the date of notice of withdrawals.
[33]

Hence, poor countries can protect their

common interests more effectively through the
WTO than through one-on-one negotiations
with developed countries. Within the WTO,
developing countries can form powerful blocs
to push their economic agenda more decisively
than outside the Organization. This is not
merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the
basic principles underlying the WTO Agreement
recognize the need of developing countries like
the Philippines to share in the growth in
international trade commensurate with the
needs of their economic development. These
basic principles are found in the preamble[34] of
the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of
trade and economic endeavour should be
conducted with a view to raising standards of
living, ensuring full employment and a large
and steadily growing volume of real income
and effective demand, and expanding the

production of and trade in goods and services,

while allowing for the optimal use of the worlds
resources in accordance with the objective of
sustainable development, seeking both to
protect and preserve the environment and to
enhance the means for doing so in a manner
consistent with their respective needs and
concerns at different levels of economic
development,
Recognizing further that there is need for
positive efforts designed to ensure that
developing countries, and especially the least
developed among them, secure a share in the
growth in international trade commensurate
with the needs of their economic development,
Being desirous of contributing to these
objectives by entering into reciprocal and
mutually advantageous arrangements directed
to the substantial reduction of tariffs and other
barriers to trade and to theelimination of
discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated,
more viable and durable multilateral trading
system encompassing the General Agreement
on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of
the Uruguay Round of Multilateral Trade
Negotiations,
Determined to preserve the basic principles
and to further the objectives underlying this
multilateral trading system, x x
x. (underscoring supplied.)
Specific WTO Provisos Protect Developing
Countries
So too, the Solicitor General points out that
pursuant to and consistent with the foregoing
basic principles, the WTO Agreement grants
developing countries a more lenient treatment,
giving their domestic industries some
protection from the rush of foreign
competition. Thus, with respect to tariffs in

63

general, preferential treatment is given to

developing countries in terms of the amount of
tariff reduction and the period within which the
reduction is to be spread out. Specifically, GATT
requires an average tariff reduction rate of 36%
for developed countries to be effected within
a period of six (6) years while developing
countries -- including the Philippines -are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT
requires developed countries to reduce
domestic support to agricultural products
by 20% over six (6) years, as compared to only
13% for developing countries to be effected
within ten (10) years.
In regard to export subsidy for agricultural
products, GATT requires developed countries to
reduce their budgetary outlays for export
subsidy by 36% and export volumes receiving
export subsidy by 21% within a period of six (6)
years. For developing countries, however, the
reduction rate is only two-thirds of that
prescribed for developed countries and a
longer period of ten (10) years within which to
effect such reduction.
Moreover, GATT itself has provided built-in
protection from unfair foreign competition and
trade practices including anti-dumping
measures, countervailing measures and
safeguards against import surges. Where local
businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these
measures. There is hardly therefore any basis
for the statement that under the WTO, local
industries and enterprises will all be wiped out
and that Filipinos will be deprived of control of
the economy. Quite the contrary, the weaker
situations of developing nations like the
Philippines have been taken into account; thus,
there would be no basis to say that in joining
the WTO, the respondents have gravely abused
their discretion.True, they have made a bold
decision to steer the ship of state into the yet

uncharted sea of economic liberalization. But

such decision cannot be set aside on the
ground of grave abuse of discretion, simply
because we disagree with it or simply because
we believe only in other economic policies. As
earlier stated, the Court in taking jurisdiction of
this case will not pass upon the advantages
and disadvantages of trade liberalization as an
economic policy. It will only perform its
constitutional duty of determining whether the
Senate committed grave abuse of discretion.

against a sheltered domestic trade

environment, but one in favor of the gradual
development of robust industries that can
compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity
to compete internationally. And given a free
trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against
the best offered under a policy of laissez faire.

Constitution Does Not Rule Out Foreign

Competition

Constitution Favors Consumers, Not

Industries or Enterprises

Furthermore, the constitutional policy of a selfreliant and independent national

economy[35] does not necessarily rule out the
entry of foreign investments, goods and
services. It contemplates neither economic
seclusion nor mendicancy in the international
community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of
this constitutional policy:

The Constitution has not really shown any

unbalanced bias in favor of any business or
enterprise, nor does it contain any specific
pronouncement that Filipino companies should
be pampered with a total
proscription of foreign competition. On the othe
r hand, respondents claim that WTO/GATT aims
to make available to the Filipino consumer the
best goods and services obtainable anywhere
in the world at the most reasonable
prices. Consequently, the question boils down
to whether WTO/GATT will favor the general
welfare of the public at large.

Economic self-reliance is a primary objective of

a developing country that is keenly aware of
overdependence on external assistance for
even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means
avoiding mendicancy in the international
community. Independence refers to the
freedom from undue foreign control of the
national economy, especially in such strategic
industries as in the development of natural
resources and public utilities.[36]
The WTO reliance on most favored nation,
national treatment, and trade without
discrimination cannot be struck down as
unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy
based on equality and reciprocity,[37] the
fundamental law encourages industries that
are competitive in both domestic and foreign
markets, thereby demonstrating a clear policy

Will adherence to the WTO treaty bring this

ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the
Filipinos general welfare because it will -- as
promised by its promoters -- expand the
countrys exports and generate more
employment?
Will it bring more prosperity, employment,
purchasing power and quality products at the
most reasonable rates to the Filipino public?
The responses to these questions involve
judgment calls by our policy makers, for which
they are answerable to our people during
appropriate electoral exercises. Such questions
and the answers thereto are not subject to

64

judicial pronouncements based on grave abuse

of discretion.
Constitution Designed to Meet Future
Events and Contingencies
No doubt, the WTO Agreement was not yet in
existence when the Constitution was drafted
and ratified in 1987. That does not mean
however that the Charter is necessarily flawed
in the sense that its framers might not have
anticipated the advent of a borderless world of
business. By the same token, the United
Nations was not yet in existence when the
1935 Constitution became effective. Did that
necessarily mean that the then Constitution
might not have contemplated a diminution of
the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby
effectively surrendering part of its control over
its foreign relations to the decisions of various
UN organs like the Security Council?
It is not difficult to answer this
question. Constitutions are designed to meet
not only the vagaries of contemporary
events. They should be interpreted to cover
even future and unknown circumstances. It is
to the credit of its drafters that a Constitution
can withstand the assaults of bigots and
infidels but at the same time bend with the
refreshing winds of change necessitated by
unfolding events. As one eminent political law
writer and respected jurist[38] explains:
The Constitution must be quintessential rather
than superficial, the root and not the blossom,
the base and framework only of the edifice that
is yet to rise. It is but the core of the dream
that must take shape, not in a twinkling by
mandate of our delegates, but slowly in the
crucible of Filipino minds and hearts, where it
will in time develop its sinews and gradually
gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like
the goddess Athena, rise full-grown from the
brow of the Constitutional Convention, nor can

it conjure by mere fiat an instant Utopia. It

must grow with the society it seeks to restructure and march apace with the progress of
the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep
it, far from becoming a petrified rule, a pulsing,
living law attuned to the heartbeat of the
nation.
Third Issue: The WTO Agreement and
Legislative Power
The WTO Agreement provides that (e)ach
Member shall ensure the conformity of its laws,
regulations and administrative procedures with
its obligations as provided in the annexed
Agreements.[39] Petitioners maintain that this
undertaking unduly limits, restricts and impairs
Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI
of the 1987 Philippine Constitution is vested in
the Congress of the Philippines. It is an assault
on the sovereign powers of the Philippines
because this means that Congress could not
pass legislation that will be good for our
national interest and general welfare if such
legislation will not conform with the WTO
Agreement, which not only relates to the trade
in goods x x x but also to the flow of
investments and money x x x as well as to a
whole slew of agreements on socio-cultural
matters x x x.[40]
More specifically, petitioners claim that said
WTO proviso derogates from the power to tax,
which is lodged in the Congress.[41] And while
the Constitution allows Congress to authorize
the President to fix tariff rates, import and
export quotas, tonnage and wharfage dues,
and other duties or imposts, such authority is
subject to specified limits and x x x such
limitations and restrictions as Congress may
provide,[42] as in fact it did under Sec. 401 of
the Tariff and Customs Code.
Sovereignty Limited by International Law
and Treaties

This Court notes and appreciates the ferocity

and passion by which petitioners stressed their
arguments on this issue. However, while
sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic
level, it is however subject to restrictions and
limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a
member of the family of
nations. Unquestionably, the Constitution did
not envision a hermit-type isolation of the
country from the rest of the world. In its
Declaration of Principles and State Policies, the
Constitution adopts the generally accepted
principles of international law as part of the law
of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and
amity, with all nations."[43] By the doctrine of
incorporation, the country is bound by
generally accepted principles of international
law, which are considered to be automatically
part of our own laws.[44] One of the oldest and
most fundamental rules in international law
is pacta sunt servanda -- international
agreements must be performed in good faith. A
treaty engagement is not a mere moral
obligation but creates a legally binding
obligation on the parties x x x. A state which
has contracted valid international obligations is
bound to make in its legislations such
modifications as may be necessary to ensure
the fulfillment of the obligations undertaken.[45]
By their inherent nature, treaties really limit or
restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender
some aspects of their state power in exchange
for greater benefits granted by or derived from
a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus,
treaties have been used to record agreements
between States concerning such widely diverse
matters as, for example, the lease of naval
bases, the sale or cession of territory, the

65

termination of war, the regulation of conduct of

hostilities, the formation of alliances, the
regulation of commercial relations, the settling
of claims, the laying down of rules governing
conduct in peace and the establishment of
international organizations.[46] The sovereignty
of a state therefore cannot in fact and in reality
be considered absolute. Certain restrictions
enter into the picture: (1) limitations imposed
by the very nature of membership in the family
of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny
alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.[47]
UN Charter and Other Treaties Limit
Sovereignty
Thus, when the Philippines joined the United
Nations as one of its 51 charter members, it
consented to restrict its sovereign rights under
the concept of sovereignty as auto-limitation. 47A
Under Article 2 of the UN Charter, (a)ll
members shall give the United Nations every
assistance in any action it takes in accordance
with the present Charter, and shall refrain from
giving assistance to any state against which
the United Nations is taking preventive or
enforcement action. Such assistance includes
payment of its corresponding share not merely
in administrative expenses but also in
expenditures for the peace-keeping operations
of the organization. In its advisory opinion of
July 20, 1961, the International Court of Justice
held that money used by the United Nations
Emergency Force in the Middle East and in the
Congo were expenses of the United Nations
under Article 17, paragraph 2, of the UN
Charter. Hence, all its members must bear their
corresponding share in such expenses. In this
sense, the Philippine Congress is restricted in
its power to appropriate. It is compelled to
appropriate funds whether it agrees with such
peace-keeping expenses or not. So too, under
Article 105 of the said Charter, the UN and its
representatives enjoy diplomatic privileges and

immunities, thereby limiting again the exercise

of sovereignty of members within their own
territory. Another example: although sovereign
equality and domestic jurisdiction of all
members are set forth as underlying principles
in the UN Charter, such provisos are however
subject to enforcement measures decided by
the Security Council for the maintenance of
international peace and security under Chapter
VII of the Charter. A final example: under Article
103, (i)n the event of a conflict between the
obligations of the Members of the United
Nations under the present Charter and their
obligations under any other international
agreement, their obligation under the present
charter shall prevail, thus unquestionably
denying the Philippines -- as a member -- the
sovereign power to make a choice as to which
of conflicting obligations, if any, to honor.

(c) Bilateral convention with the Kingdom of

Sweden for the avoidance of double taxation.

Apart from the UN Treaty, the Philippines has

entered into many other international
pacts -- both bilateral and multilateral -- that
involve limitations on Philippine
sovereignty. These are enumerated by the
Solicitor General in his Compliance dated
October 24, 1996, as follows:

(g) Bilateral air service agreement with

Belgium where the Philippines granted Belgian
air carriers the same privileges as those
granted to Japanese and Korean air carriers
under separate air service agreements.

(a) Bilateral convention with the United States

regarding taxes on income, where the
Philippines agreed, among others, to exempt
from tax, income received in the Philippines by,
among others, the Federal Reserve Bank of the
United States, the Export/Import Bank of the
United States, the Overseas Private Investment
Corporation of the United States. Likewise, in
said convention, wages, salaries and similar
remunerations paid by the United States to its
citizens for labor and personal services
performed by them as employees or officials of
the United States are exempt from income tax
by the Philippines.
(b) Bilateral agreement with Belgium,
providing, among others, for the avoidance of
double taxation with respect to taxes on
income.

(d) Bilateral convention with the French

Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea
where the Philippines agreed to exempt from
all customs duties, inspection fees and other
duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan,
where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees
and other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on
Philippine soil.

(h) Bilateral notes with Israel for the abolition

of transit and visitor visas where the Philippines
exempted Israeli nationals from the
requirement of obtaining transit or visitor visas
for a sojourn in the Philippines not exceeding
59 days.
(I) Bilateral agreement with France exempting
French nationals from the requirement of
obtaining transit and visitor visa for a sojourn
not exceeding 59 days.
(j) Multilateral Convention on Special Missions,
where the Philippines agreed that premises of
Special Missions in the Philippines are
inviolable and its agents can not enter said
premises without consent of the Head of
Mission concerned. Special Missions are also
exempted from customs duties, taxes and
related charges.

66

(k) Multilateral Convention on the Law of

Treaties. In this convention, the Philippines
agreed to be governed by the Vienna
Convention on the Law of Treaties.
(l) Declaration of the President of the
Philippines accepting compulsory jurisdiction of
the International Court of Justice. The
International Court of Justice has jurisdiction in
all legal disputes concerning the interpretation
of a treaty, any question of international law,
the existence of any fact which, if established,
would constitute a breach of international
obligation.
In the foregoing treaties, the Philippines has
effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain
and police power. The underlying consideration
in this partial surrender of sovereignty is the
reciprocal commitment of the other contracting
states in granting the same privilege and
immunities to the Philippines, its officials and
its citizens. The same reciprocity characterizes
the Philippine commitments under WTO-GATT.
International treaties, whether relating to
nuclear disarmament, human rights, the
environment, the law of the sea, or trade,
constrain domestic political sovereignty
through the assumption of external
obligations. But unless anarchy in international
relations is preferred as an alternative, in most
cases we accept that the benefits of the
reciprocal obligations involved outweigh the
costs associated with any loss of political
sovereignty. (T)rade treaties that structure
relations by reference to durable, well-defined
substantive norms and objective dispute
resolution procedures reduce the risks of larger
countries exploiting raw economic power to
bully smaller countries, by subjecting power
relations to some form of legal ordering. In
addition, smaller countries typically stand to
gain disproportionately from trade
liberalization. This is due to the simple fact that
liberalization will provide access to a larger set

of potential new trading relationship than in

case of the larger country gaining enhanced
success to the smaller countrys market. [48]
The point is that, as shown by the foregoing
treaties, a portion of sovereignty may be
waived without violating the Constitution,
based on the rationale that the Philippines
adopts the generally accepted principles of
international law as part of the law of the land
and adheres to the policy of x x x cooperation
and amity with all nations.
Fourth Issue: The WTO Agreement and
Judicial Power
Petitioners aver that paragraph 1, Article 34 of
the General Provisions and Basic Principles of
the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS)[49]intrudes
on the power of the Supreme Court to
promulgate rules concerning pleading, practice
and procedures.[50]
To understand the scope and meaning of Article
34, TRIPS,[51] it will be fruitful to restate its full
text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in
respect of the infringement of the rights of the
owner referred to in paragraph 1(b) of Article
28, if the subject matter of a patent is a
process for obtaining a product, the judicial
authorities shall have the authority to order the
defendant to prove that the process to obtain
an identical product is different from the
patented process. Therefore, Members shall
provide, in at least one of the following
circumstances, that any identical product when
produced without the consent of the patent
owner shall, in the absence of proof to the
contrary, be deemed to have been obtained by
the patented process:

(a) if the product obtained by the patented

process is new;
(b) if there is a substantial likelihood that the
identical product was made by the process and
the owner of the patent has been unable
through reasonable efforts to determine the
process actually used.
2. Any Member shall be free to provide that the
burden of proof indicated in paragraph 1 shall
be on the alleged infringer only if the condition
referred to in subparagraph (a) is fulfilled or
only if the condition referred to in
subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the
legitimate interests of defendants in protecting
their manufacturing and business secrets shall
be taken into account.
From the above, a WTO Member is required to
provide a rule of disputable (note the words in
the absence of proof to the contrary)
presumption that a product shown to be
identical to one produced with the use of a
patented process shall be deemed to have
been obtained by the (illegal) use of the said
patented process, (1) where such product
obtained by the patented product is new, or (2)
where there is substantial likelihood that the
identical product was made with the use of the
said patented process but the owner of the
patent could not determine the exact process
used in obtaining such identical
product. Hence, the burden of proof
contemplated by Article 34 should actually be
understood as the duty of the alleged patent
infringer to overthrow such presumption. Such
burden, properly understood, actually refers to
the burden of evidence (burden of going
forward) placed on the producer of the identical
(or fake) product to show that his product was
produced without the use of the patented
process.

67

The foregoing notwithstanding, the patent

owner still has the burden of proof since,
regardless of the presumption provided under
paragraph 1 of Article 34, such owner still has
to introduce evidence of the existence of the
alleged identical product, the fact that it is
identical to the genuine one produced by the
patented process and the fact of newness of
the genuine product or the fact of substantial
likelihood that the identical product was made
by the patented process.
The foregoing should really present no problem
in changing the rules of evidence as the
present law on the subject, Republic Act No.
165, as amended, otherwise known as the
Patent Law, provides a similar presumption in
cases of infringement of patented design or
utility model, thus:
SEC. 60. Infringement. - Infringement of a
design patent or of a patent for utility model
shall consist in unauthorized copying of the
patented design or utility model for the
purpose of trade or industry in the article or
product and in the making, using or selling of
the article or product copying the patented
design or utility model. Identity or substantial
identity with the patented design or utility
model shall constitute evidence of copying.
(underscoring supplied)
Moreover, it should be noted that the
requirement of Article 34 to provide a
disputable presumption applies only if (1) the
product obtained by the patented process is
NEW or (2) there is a substantial likelihood that
the identical product was made by the process
and the process owner has not been able
through reasonable effort to determine the
process used. Where either of these
two provisos does not obtain, members shall be
free to determine the appropriate method of
implementing the provisions of TRIPS within
their own internal systems and processes.

By and large, the arguments adduced in

connection with our disposition of the third
issue -- derogation of legislative power - will
apply to this fourth issue also. Suffice it to say
that the reciprocity clause more than justifies
such intrusion, if any actually exists. Besides,
Article 34 does not contain an unreasonable
burden, consistent as it is with due process and
the concept of adversarial dispute settlement
inherent in our judicial system.
So too, since the Philippine is a signatory to
most international conventions on patents,
trademarks and copyrights, the adjustment in
legislation and rules of procedure will not be
substantial.[52]
Fifth Issue: Concurrence Only in the WTO
Agreement and Not in Other Documents
Contained in the Final Act
Petitioners allege that the Senate concurrence
in the WTO Agreement and its annexes -- but
not in the other documents referred to in the
Final Act, namely the Ministerial Declaration
and Decisions and the Understanding on
Commitments in Financial Services -- is
defective and insufficient and thus constitutes
abuse of discretion. They submit that such
concurrence in the WTO Agreement alone is
flawed because it is in effect a rejection of the
Final Act, which in turn was the document
signed by Secretary Navarro, in representation
of the Republic upon authority of the
President. They contend that the second letter
of the President to the Senate[53] which
enumerated what constitutes the Final Act
should have been the subject of concurrence of
the Senate.
A final act, sometimes called protocol de
clture, is an instrument which records the
winding up of the proceedings of a diplomatic
conference and usually includes a reproduction
of the texts of treaties, conventions,
recommendations and other acts agreed upon
and signed by the plenipotentiaries attending

the conference.[54] It is not the treaty itself. It is

rather a summary of the proceedings of a
protracted conference which may have taken
place over several years. The text of the Final
Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations is
contained in just one page[55] in Vol. I of the 36volume Uruguay Round of Multilateral Trade
Negotiations. By signing said Final Act,
Secretary Navarro as representative of the
Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO
Agreement for the consideration of their
respective competent authorities with a view to
seeking approval of the Agreement in
accordance with their procedures; and
(b) to adopt the Ministerial Declarations and
Decisions."
The assailed Senate Resolution No. 97
expressed concurrence in exactly what the
Final Act required from its signatories, namely,
concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were
deemed adopted without need for
ratification. They were approved by the
ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the
members can meet to give effect to those
provisions of this Agreement which invoke joint
action, and generally with a view to facilitating
the operation and furthering the objectives of
this Agreement.[56]
The Understanding on Commitments in
Financial Services also approved in Marrakesh
does not apply to the Philippines. It applies only
to those 27 Members which have indicated in
their respective schedules of commitments on
standstill, elimination of monopoly, expansion
of operation of existing financial service
suppliers, temporary entry of personnel, free
transfer and processing of information, and

68

national treatment with respect to access to

payment, clearing systems and refinancing
available in the normal course of business.[57]
On the other hand, the WTO Agreement itself
expresses what multilateral agreements are
deemed included as its integral parts,[58] as
follows:
Article II
Scope of the WTO
1. The WTO shall provide the common
institutional framework for the conduct of trade
relations among its Members in matters to the
agreements and associated legal instruments
included in the Annexes to this Agreement.
2. The Agreements and associated legal
instruments included in Annexes 1, 2, and 3
(hereinafter referred to as Multilateral
Agreements) are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal
instruments included in Annex 4 (hereinafter
referred to as Plurilateral Trade Agreements)
are also part of this Agreement for those
Members that have accepted them, and are
binding on those Members. The Plurilateral
Trade Agreements do not create either
obligation or rights for Members that have not
accepted them.
4. The General Agreement on Tariffs and Trade
1994 as specified in annex 1A (hereinafter
referred to as GATT 1994) is legally distinct
from the General Agreement on Tariffs and
Trade, dated 30 October 1947, annexed to the
Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee
of the United Nations Conference on Trade and
Employment, as subsequently rectified,
amended or modified (hereinafter referred to
as GATT 1947).

It should be added that the Senate was wellaware of what it was concurring in as shown by
the members deliberation on August 25,
1994. After reading the letter of President
Ramos dated August 11, 1994,[59] the senators
of the Republic minutely dissected what the
Senate was concurring in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the
validity of the submission came up in the first
day hearing of this Committee yesterday. Was
the observation made by Senator Taada that
what was submitted to the Senate was not the
agreement on establishing the World Trade
Organization by the final act of the Uruguay
Round which is not the same as the agreement
establishing the World Trade Organization? And
on that basis, Senator Tolentino raised a point
of order which, however, he agreed to withdraw
upon understanding that his suggestion for an
alternative solution at that time was
acceptable. That suggestion was to treat the
proceedings of the Committee as being in the
nature of briefings for Senators until the
question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the
President submitting a new... is he making a
new submission which improves on the clarity
of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that
it is clear cut and there should be no
misunderstanding, it was his intention to clarify
all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada
and later on Senator Tolentino since they were
the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it
would now clearly appear that what is being

submitted to the Senate for ratification is not

the Final Act of the Uruguay Round, but rather
the Agreement on the World Trade Organization
as well as the Ministerial Declarations and
Decisions, and the Understanding and
Commitments in Financial Services.
I am now satisfied with the wording of the new
submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr.
Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can
we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen
the new submission actually transmitted to us
but I saw the draft of his earlier, and I think it
now complies with the provisions of the
Constitution, and with the Final Act itself. The
Constitution does not require us to ratify the
Final Act. It requires us to ratify the Agreement
which is now being submitted. The Final Act
itself specifies what is going to be submitted to
with the governments of the participants.
In paragraph 2 of the Final Act, we read and I
quote:
By signing the present Final Act, the
representatives agree: (a) to submit as
appropriate the WTO Agreement for the
consideration of the respective competent
authorities with a view to seeking approval of
the Agreement in accordance with their
procedures.
In other words, it is not the Final Act that was
agreed to be submitted to the governments for
ratification or acceptance as whatever their
constitutional procedures may provide but it is
the World Trade Organization Agreement. And if
that is the one that is being submitted now, I
think it satisfies both the Constitution and the
Final Act itself.

69

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator
Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on
this matter are already a matter of record. And
they had been adequately reflected in the
journal of yesterdays session and I dont see
any need for repeating the same.
Now, I would consider the new submission as
an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator
Gonzales. Senator Lina, do you want to make
any comment on this?
SEN. LINA. Mr. President, I agree with the
observation just made by Senator Gonzales out
of the abundance of question. Then the new
submission is, I believe, stating the obvious
and therefore I have no further comment to
make.
Epilogue
In praying for the nullification of the Philippine
ratification of the WTO Agreement, petitioners
are invoking this Courts constitutionally
imposed duty to determine whether or not
there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of the Senate in giving its concurrence
therein via Senate Resolution No.
97. Procedurally, a writ ofcertiorari grounded
on grave abuse of discretion may be issued by
the Court under Rule 65 of the Rules of Court
when it is amply shown that petitioners have
no other plain, speedy and adequate remedy in
the ordinary course of law.
By grave abuse of discretion is meant such
capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction.[61] Mere
abuse of discretion is not enough. It must
begrave abuse of discretion as when the power
is exercised in an arbitrary or despotic manner

by reason of passion or personal hostility, and

must be so patent and so gross as to amount to
an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at
all in contemplation of law.[62] Failure on the
part of the petitioner to show grave abuse of
discretion will result in the dismissal of the
petition.[63]
In rendering this Decision, this Court never
forgets that the Senate, whose act is under
review, is one of two sovereign houses of
Congress and is thus entitled to great respect
in its actions. It is itself a constitutional body
independent and coordinate, and thus its
actions are presumed regular and done in good
faith. Unless convincing proof and persuasive
arguments are presented to overthrow such
presumptions, this Court will resolve every
doubt in its favor. Using the foregoing wellaccepted definition of grave abuse of discretion
and the presumption of regularity in the
Senates processes, this Court cannot find any
cogent reason to impute grave abuse of
discretion to the Senates exercise of its power
of concurrence in the WTO Agreement granted
it by Sec. 21 of Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad
constitutional principles require the State to
develop an independent national economy
effectively controlled by Filipinos; and to
protect and/or prefer Filipino labor, products,
domestic materials and locally produced
goods. But it is equally true that such principles
-- while serving as judicial and legislative
guides -- are not in themselves sources of
causes of action. Moreover, there are other
equally fundamental constitutional principles
relied upon by the Senate which mandate the
pursuit of a trade policy that serves the general
welfare and utilizes all forms and arrangements
of exchange on the basis of equality and
reciprocity and the promotion of industries
which are competitive in both domestic and
foreign markets, thereby justifying its
acceptance of said treaty. So too, the alleged

impairment of sovereignty in the exercise of

legislative and judicial powers is balanced by
the adoption of the generally accepted
principles of international law as part of the law
of the land and the adherence of the
Constitution to the policy of cooperation and
amity with all nations.
That the Senate, after deliberation and voting,
voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making
it a part of the law of the land is a legitimate
exercise of its sovereign duty and power. We
find no patent and gross arbitrariness or
despotism by reason of passion or personal
hostility in such exercise. It is not impossible to
surmise that this Court, or at least some of its
members, may even agree with petitioners that
it is more advantageous to the national interest
to strike down Senate Resolution No. 97. But
that isnot a legal reason to attribute grave
abuse of discretion to the Senate and to nullify
its decision. To do so would constitute grave
abuse in the exercise of our own judicial power
and duty.Ineludably, what the Senate did was a
valid exercise of its authority. As to whether
such exercise was wise, beneficial or viable is
outside the realm of judicial inquiry and
review. That is a matter between the elected
policy makers and the people. As to whether
the nation should join the worldwide march
toward trade liberalization and economic
globalization is a matter that our people should
determine in electing their policy makers. After
all, the WTO Agreement allows withdrawal of
membership, should this be the political desire
of a member.
The eminent futurist John Naisbitt, author of
the best seller Megatrends, predicts an Asian
Renaissance[65] where the East will become the
dominant region of the world economically,
politically and culturally in the next century. He
refers to the free market espoused by WTO as
the catalyst in this coming Asian
ascendancy. There are at present about 31
countries including China, Russia and Saudi

70

Arabia negotiating for membership in the

WTO. Notwithstanding objections against
possible limitations on national sovereignty,
the WTO remains as the only viable structure
for multilateral trading and the veritable forum
for the development of international trade
law. The alternative to WTO is isolation,
stagnation, if not economic selfdestruction. Duly enriched with original

membership, keenly aware of the advantages

and disadvantages of globalization with its online experience, and endowed with a vision of
the future, the Philippines now straddles the
crossroads of an international strategy for
economic prosperity and stability in the new
millennium. Let the people, through their duly
authorized elected officers, make their free
choice.

WHEREFORE, the petition is DISMISSED for

lack of merit.
SO ORDERED.

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