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Saguisag vs Ochoa, Jr.

En Banc Decision

GR 212426, January 12, 2016

Submitted by: Christina Soriano

Facts:

The Constitution in Sec. 1 of Art. VII has vested the executive power in the
President of the Philippines. From the office of the Chief Executive flows vast
powers, two of which that are related to the case at bar are the military power and
diplomatic power of the President. The Constitution further provides in Sec. 4 Art.
II that the prime duty of the Government, of which the president is the head, is to
serve and protect its people . The government may call upon the people to defend
the State and, in fulfillment thereof, all citizens may be required, under condition
provided by law, to render personal and military service.

The military power of the President can be gleaned from Sec. 18, Art VII of the
Constitution. As such, the duty to protect and defend the State extends throughout
the national territory, the President being its head, the sole repository of executive
power , is then the guardian of the archipelago, the scope of which is expressed in
Art. I of the Constitution.

In order to effectively carry out the mandates of his office, the President as
Commander-in-Chief is equipped with authority over the Armed Forces of the
Philippines, the protector of the people and the State, specifically to secure the
sovereignty of the State and the integrity of the national territory. The President
assumes this role because he, by Constitutional fiat, has to maintain peace and
order, protect life, liberty and property and promote general welfare.

In addition to the powers of the President granted by the Constitution, Congress,


through AC 1987 (Book IV, Title VIII, Sec. 15) provides that defense
establishment shall be maintained to maximize its effectiveness against external
and internal threats to national peace and security and provide support for social
and economic development, while at the same time ensure the countrys
preparedness for all national and local emergencies arising from natural and man-
made disasters.

Nevertheless, this vast military power of the President is however limited by the
Constitution itself.

For the diplomatic power of the President, his office carries the mandate of being
the sole organ in the conduct of foreign relations pursuant to Sec. 1, Art VII of the
Constitution. Specifically, Sec. 21 of Art. VII provides that the President has the
power to enter into treaties or international agreements. The conduct of which is
full of complexities and consequences that it can only be rightfully entrusted to
that department of the government which can act on the basis of the best
information available and thus act with decisiveness, the President. In line with
this, the President is given a wider degree of discretion in the conduct of foreign
affairs. Otherwise, his conduct, if judicially repudiated, may lead the country to
suffer: breach of international obligations, rupture of state relations, forfeiture of
confidence, national embarrassment and the multitude of other problems with
undesirable effects.

Again, the Presidents power in the conduct of foreign relations or diplomatic


power is qualified by the Constitution in that the Chief Executive must give
paramount consideration to the sovereignty of the nation, the integrity of its
territory, its interest and the right of people to self-determination (Sec. 7, Art II).
Specific provisions of the Presidents limitation of powers in foreign relations are
in Sec. 2, Art. II in the conduct of war; Sections 20 & 21, Art. II on foreign loans,
treaties and international agreements; Sections 4(2) and 5(2), Art VIII on judicial
review of executive acts; Sections 4 and 25, Art XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign
military troops, bases or facilities.

Relating these 2 powers, the military power and diplomatic power, the power to
defend the State and to act as its representative is inherent in the President.
However, this does not give him absolute discretion to craft whatever instrument
he so desires. This is where the Senate comes in, manifestly in adherence to the
principle of checks and balances, wherein the Senate has a role in ensuring that the
treaties entered into by the President ( Sec. 21, Art VII of the Constitution) obtain
first the approval of at least 2/3 of all its members, lest it is deemed invalid,
ineffective and unenforceable. From this it can be gleaned, that the President shares
the responsibilities with the Senate in the treaties he enters into. This shared role is
what, petitioners claim, is bypassed by EDCA.

HISTORICAL ANTECEDENTS OF EDCA


After Spain lost in the Spanish-American War in the Battle of Manila Bay in 1898,
it ceded Philippine colonization to the U.S. ; after which the Americans
consolidated a military administration in the archipelago.

The Philippines, led by General Emilio Aguinaldo, went into an all-out war after it
was apparent that the U.S. intended to impose colonial control over the Philippines.
This was lasted until 1902, the Philippines defeated, leading to the downfall of the
1st Philippine Republic. With this victory, the Americans strengthened their
foothold on the country taking over and expanding the former Spanish Naval Base
in Subic Bay and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.

The Hare-Hawes Cutting Act of 1933 was enacted by the U.S. Congress which
required that the proposed constitution that the Philippines was desiring in its
independence, include the right of the U.S. to maintain its armed forces and
military bases. The Philippine Legislature rejected the law because it unilaterally
gave power to the U.S. to designate any part of the Philippine territory as a
permanent military or naval base of the U.S. within 2 years of its independence.

The Tydings-McDuffie Act of the Philippine Independence Act of 1934 was


subsequently legislated by the U.S. which provided for the surrender to the
Commonwealth Government of all military and other reservations of the U.S.
government in the Philippines, except the naval reservations and refueling stations.
More importantly in this Act, the U.S. President would proclaim the American
withdrawal and surrender of the sovereignty of the Philippines 10 years after the
inauguration of the new Philippine government, which law led to the promulgation
of the1935 Constitution.

At the height of the Second World War, the plan to surrender the military bases
changed as Legislatures of the Philippines and U.S. respectively passed resolutions
authorizing the negotiations regarding the retention of the bases.

In 1946, the RP-US Treaty of General Relations was entered into relinquishing US
control over the Philippine islands except those covered by the American bases in
the country, which treaty eventually lead to the post-colonial legal regime that
would retain the presence of the U.S. military forces until 1991: the Military Bases
Agreement of 1947, the Military Assistance Agreement of 1947 and the Mutual
Defense treaty of 1951.

After the Philippine independence in 1946, the MBA was entered into wherein the
Senate concurred on the premise of mutuality of security interest. MBA provided
for the presence and operation of the 23 military bases of the US in RP for a period
of 99 years or until 2046. It also obliged RP to negotiate with the US to allow the
US to expand the existing bases or acquire new ones as necessity might require.

The Ramos- Rusk Agreement was entered into in 1966, modifying some provisions
of the MBA, specifically reducing the period of 99 years to 44 years or until 1991.

The Bohlen-Serrano Memorandum of Agreement was entered into providing for


the return of 17 US military bases to the Philippines, covering a total area of
117,075 hectares.

After 12 years of the preceding agreement, the US returned Sangley Point in


Cavite through an exchange of notes.

In 1979, the Romulo-Murphy Exchange of Notes was entered into wherein


Philippine sovereignty was recognized
the over Subic and Clark Bases and the mandatory review of the treaty every 5
years.

In 1983, the Romualdez-Armacost Agreement was entered into further modifying


the 1947 MBA.
The 1947 Military Assistance Agreement was entered into establishing conditions
under which U.S. military
Assistance would be granted to RP.

In 1951, the MDT was entered into to further strengthen the defense and security
relationship of the RP and the US, concurred by both countrys senate bodies. This
treaty was premised on the recognition that an armed attack on either of them
would equally be a threat on the security of the other.

In view of the impending expiration of the 1947 MBA in 1991, both contracting
States entered into another treaty to extend US bases stay in the country. The
Senate however rejected the treaty, leading to the expiration of the MBA and the
suspension of large-scale military exercises.

The military arrangements between the parties resumed as they entered into the
Visiting Forces Agreement which consist of 2 parts (VFA I and VFA II) regulating
the mechanism of US military and civilian personnel entering the Philippines and
vice versa. This was concurred by the Senate. It eventually gave birth to the
Balikatan Exercises which are trainings aimed at simulating joint military
maneuvers pursuant to the MDT.

Petitioners, as citizens, taxpayers and former legislators, questioned before the SC


the constitutionality of EDCA. EDCA (Enhanced Defense Cooperation Agreement)
is an agreement entered into by the executive department with the US in April 28,
2014 and ratified on June 6, 2014. Under the EDCA, the PH shall provide the US
forces the access and use of portions of PH territory, which are called Agreed
Locations. Aside from the right to access and to use the Agreed Locations, the US
may undertake the following types of activities within the Agreed Locations:
security cooperation exercises; joint and combined training activities; humanitarian
and disaster relief activities; and such other activities that as may be agreed upon
by the parties. This was not transmitted to the Senate on the executives
understanding that it was no longer necessary.

Mainly, petitioners posit that the use of executive agreement as medium of


agreement with US violated the constitutional requirement of Art XVIII, Sec 25
since the EDCA involves foreign military bases, troops and facilities whose entry
into the country should be covered by a treaty concurred in by the Senate.

Sec. 25 of Art 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.
The Senate, through Senate Resolution 105, also expressed its position that EDCA
needs congressional ratification.

Issues:
1. Whether the essential requisites for judicial review are present
2. Whether the President may enter into an executive agreement on foreign
military bases, troops or facilities
3. Whether the provisions of EDCA are consistent with the Constitution, as
well as with existing laws or treaties

I.
The power of judicial review refers to both the authority and duty of the Court to
determine whether a branch or instrumentality of the government has acted beyond
the scope of the latters constitutional powers. This power is also called the
moderating power in Angara vs Electoral Commission, which is part of the
checks and balances under the Constitution.

The court has cited in the US case of Ashwander vs Tennessee Valley, the pillars
of the limitations for judicial review:
a. That there be absolute necessity of deciding a case
b. That rules of constitutional law shall be formulated only as required of the
facts
c. That judgment may not be sustained on some other ground
d. That there be actual injury sustained by the party by reason of the operation
of the statute
e. That the parties are not in estoppel
f. That the Court upholds the presumption of constitutionality

From these the power of judicial review may be invoked following the four
requirements: (a) there must be an actual case or controversy, (b) petitioners
possess locus standi, (c) the question of constitutionality is raised at the earliest
opportunity and (d) the issue constitutionality is the lis mota of the case. Of these
four, the first two are the most important.

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


focus of this requirement is the ripeness for adjudication of the matter hand.
In the case at bar, when the Executive Department sent an official
confirmation to the U.S. Embassy that all internal requirements of the
Philippines have already been complied with signifies the last act required
before the agreement entered into force, notwithstanding the Senate
Resolution issued expressing the Senates belief that EDCA infringes upon
its constitutional role in the participation in foreign affairs by ratifying
treaties, was sufficient to satisfy the actual case or controversy requirement.
B. While the petitioners do not have legal standing, they nonetheless raise
issues involving matters of transcendental importance. Locus standi or legal
standing focuses on the determination of whether those assailing the
governmental act have the right of appearance to bring the matter to the
court for adjudication. They must show personal and substantial interest
such that they have sustained or are in immediate danger of sustaining some
direct injury as a consequence of the challenged governmental act.

The petition cannot qualify as a citizens suit. In assailing the


constitutionality of a governmental act, petitioners suing as citizens may
dodge the requirement of having to establish a direct and personal interest if
they show that the act affects a public right. But here, aside from general
statements that the petitions involve the protection of a public right, and that
their constitutional rights as citizens would be violated, the petitioners failed
to make any specific assertion of a particular public right that would be
violated by the enforcement of EDCA. For their failure to do so, the present
petitions cannot be considered by the Court as citizens suits that would
justify a disregard of the aforementioned requirements.

Petitioners cannot also sue as taxpayers because EDCA is neither meant to


be a tax measure, nor is it directed at the disbursement of public funds.

A taxpayers suit concerns a case in which the official act complained of


directly involves the illegal disbursement of public funds derived from
taxation. Here, those challenging the act must specifically show that they
have sufficient interest in preventing the illegal expenditure of public money,
and that they will sustain a direct injury as a result of the enforcement of the
assailed act. Applying that principle to this case, they must establish that
EDCA involves the exercise by Congress of its taxing or spending powers.
A reading of the EDCA, however, would show that there has been neither an
appropriation nor an authorization of disbursement. In fact, all obligations
under this agreement are subject to availability of appropriated funds
authorized for these purposes. Until and unless the Legislature appropriates
funds for EDCA, or unless petitioners can pinpoint a specific item in the
current budget that allows expenditure under the agreement, it cannot be
ruled that there is in fact an appropriation or a disbursement that would
justify the filing of a taxpayers suit.

The petition cannot as well qualify as a Legislators suit. The power to


concur in a treaty or an international agreement is an institutional
prerogative granted by the Constitution to the Senate. In a legislators suit,
the injured party would be the Senate as an institution or any of its
incumbent members, as it is the Senates constitutional function that is
allegedly being violated. Here, none of the petitioners, who are former
senators, have the legal standing to maintain the suit. They are in fact
partylist representatives who assert to sustaining derivative but substantial
injury, arguing that under the Constitution, legislative power is vested in
both the Senate and House of Representatives; consequently, it is the entire
legislative department that has a voice in determining whether or not the
presence of the military should be allowed, thus having a requisite
personality to bring the suit. However, the Court has recognized their
standing to question the validity of any official action that they claim
infringes the prerogatives, powers and privileges vested by the Constitution
in their office.

Although petitioners lack legal standing, they raise matters of transcendental


importance which justify setting aside the rule on procedural technicalities.
The challenge raised here is rooted in the very Constitution itself,
particularly Art XVIII, Sec 25 thereof, which provides for a stricter
mechanism required before any foreign military bases, troops or facilities
may be allowed in the country. Such is of paramount public interest that the
Court is behooved to determine whether there was grave abuse of discretion
on the part of the Executive Department.

II. and III.

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

One of the principal functions of the supreme executive is the responsibility for the
faithful execution of the laws as embodied in his oath of office prescribed by the
Constitution:
Sec. 5, Art. VII:
I do solemnly swear (or affirm) that I will faithfully and conscientiously
fulfill my duties as President (or VP or Acting President) of the Philippines ,
preserve and defend its Constitution, execute its laws, do justice to every
man and consecrate myself to the service of the nation. So help me God.
This is an obligation imposed upon the President and not a separate power. It is the
power of control over the executive department that has been provided for in the
Constitution in Sec. 15, Art. VII:
The President shall have control of all executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.

This power is further codified in the Administrative Code:


Section 1. Power of Control. the President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
Hence, the duty to faithfully execute the laws is inherent in the executive power
and is intimately related to other functions. These are so broad for a President
cannot function with crippled hands, but must be capable of securing the rule of
law within all the territories of the Philippines and be empowered to do so within
Constitutional limits. Further, this mandate is self-executory by virtue of its being
inherently executive in nature. Thus, the rules issued in the implementation of the
self-executory constitutional powers of the President is not a delegated legislative
power. The rule is that the President can execute the law without any delegation of
power from the legislative branch.

In light of this constitutional duty, the President has the prerogative to do whatever
is legal and necessary for the Philippine defense interests. I t would be further a
remiss for the President and repugnant to the faithful-execution clause to do
nothing when the call of the moment requires increasing the militarys defensive
capabilities, which could include forging alliances with states that hold a common
interest with the Philippines or bringing an international suit against an offending
state.

In sum, the Presidents duty to execute the laws and protect this country is
inextricably interwoven with his foreign affairs powers, such that he must resolve
issued imbued with both concerns to the full extent of his powers, subject to limits
supplied by law. In other words, apart from an expressly mandated limit, or an
implied limit by virtue of incompatibility, the manner of execution by the
President must be given utmost deference. Understandably, this case must be
viewed with the perspective that the President must be given a degree of discretion
in the conduct of foreign relations knowing fully well the repercussions
,constitutional and legal, of any judicial overreach.

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

Despite the Presidents roles as defender of the State and sole authority in the
conduct of foreign relations, it is nevertheless limited in 2 instances:
Sec. 21, Art. VII:
No treaty or international agreement shall be valid unless concurred in by
at least 2/3 of all the members of the Senate.

And

Sec. 25, Art. XVII:


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.

3. The President may enter into an executive agreement on foreign military bases
if:
It is not the instrument that allows the presence of foreign military bases,
troops or facilities
It merely aims to implement an existing law or treaty

First, the concept of executive agreement is well-entrenched in the Courts


pronouncements on the powers of the President.

Second, the MDT which the repondents claim to be what the EDCA is supposed to
implement is not obsolete as Sen. Miriam Santiago declared, as the Court still
continues to recognize its validity.

Third, the provision in Sec. 25, Art. XVIII states shall not be allowed in
signifies that the President is not authorized by law to allow foreign military bases,
troops or facilities to enter the Philippines, except under a treaty concurred in by
the Senate. Hence, this restriction pertains to the initial entry and not to activities
done after entry. Once entry is authorized, the subsequent acts are subject only to
the limitations imposed by the rest of the constitution and Philippine laws but not
Sec. 25, Art XVIII.

Needless to say, the VFA already allowed the entry of troops in the Philippines,
which treaty was concurred in by the Senate.

Verba legis or the plain meaning of the provision is all it takes in the construction
of the same.
4. The President may generally enter into executive agreements subject to
limitations provided by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.

The power of the President to enter into executive agreements is Constitutionally


mandated and has long been recognized by the Court. It is so well-entrenched that
the Constitution has even provided for a check on this exercise. In Commissioner
of Customs vs Eastern Sea Trading, executive agreements are defines as
international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a
more or less temporary nature. Furth, in Bayan Muna vs Romulo, the Court further
clarified that executive agreements can cover a wide array of subjects that have
various scopes and purposes.

One of the distinct features of an executive agreement is that its validity and
effectivity are not affected by the lack of Senate concurrence, as stated in Eastern
Sea Trading:
Treaties are formal documents which require ratification with the approval of
2/3 of the Senate. Executive agreements become binding through executive
action without need of a vote by the Senate or Congress.

Executive agreements may dispense with the requirement of Senate concurrence


because of the legal mandate with which they are concluded. They are concluded
to (1) adjust details of a treaty, (2) pursuant to or upon confirmation by an act of
the legislature, or (3) in the exercise of the Presidents independent powers under
the Constitution. The raison d etre of executive agreements hinges on prior
constitutional or legislative authorizations.
5. The President had the choice whether to enter into EDCA by way of an
executive agreement or a treaty.

In the field of external affairs, the President must be given a larger measure of
authority and wider discretion , subject only to the least amount of checks and
restrictions under the Constitution. Further, EO 459 or the Guidelines in the
Negotiation of International Agreements and its Ratification, thus, correctly
reflected the inherent powers of the President when it stated that the DFA shall
determine whether an agreement is an executive agreement or a treaty.

Accordingly, the Court does not look whether an international agreement should
be in a form of a treaty or executive agreement but whether the international
agreement is consistent with the applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it


merely involves detail adjustments.

In Lim vs Executive Secretary, the Court upheld the provisions of the Terms of
Reference of Balikatan 02-1 joint military exercises as being consistent with the
treaty it purported to implement, the VFA.

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

An executive agreement may not be used to amend a treaty. This is clear in the
preamble of the resolution issued by the Senate regarding the VFA.

Justice Leonen presented his dissenting opinion on this present case which shall be
answered aaccordingly:

accordingly:
a. EDCA does not only regulate visits as VFA does but allows temporary
stationing on a rotational basis of the US military personnel and their
contractors in physical locations with permanent facilities and pre-
positioned military materiel.

This argument fails to account the fact the under EDCA, the permanent
facilities built by the US on Agreed Locations are to be owned by the
Philippines once constructed. The VFA allowed the same.

b. EDCA allows the pre-positioning of military materiel, which can include


warships, fighter planes, bombers, vessels, amphibious vehicles and
ammunition.

The VFA allows the same.

c. VFA contemplates the entry of troops for training exercises, whereas


EDCA allows the use of territory for launching and paramilitary
operations conducted in other states. Justice De Castro also notes that
VFA was intended for non-combat activities only, while in EDCA the
entry and activities were borne of military necessity and therefore not
contemplated under the VFA.

In Lim vs Secretary, the Court stated the both the history and intent of the
MDT and VFA support the conclusion that combat-related activities as
opposed to combat itself are authorized. Hence, even if borne out of
military necessity, EDCA cannot be said to have departed from the intent
of VFA since combat-related components are allowed under the treaty.
Further, even if the activities were not specified, the Court cannot by
judicial review cover potential breaches of discretion but actual
occurrences or blatantly illegal provisions.

d. EDCA introduces new concepts not contemplated in the VFA

The terms used in EDCA need not be sourced from the mother treaty.
They must be sourced from the authority derived from the treaty, but are
not necessarily expressed word-for-word in the mother treaty.

e. EDCA does not contain restrictions regarding jurisdiction of courts, local


autonomy and local taxation.

Both the VFA and EDCA ensure Philippine jurisdiction with the
exception found in the VFA. In VFA taxes are clearly waived while in
EDCA, taxes are assumed by the government. EDCA states that the taxes
on the use of water, electricity and public utilities are for the account of
the government. An enforceable assumption of tax liability requires the
assuming party to have actual interest in the property taxed (NPC vs
Province of Quezon). This rule applies to EDCA since the Philippines
stands to benefit not only from the structures to be built or improved but
also from joint training the US military forces, disaster preparation and
preferential use of Philippine suppliers. Hence, the provision of tax
liability assumption does not constitute tax exemption.

The admission of US military and civilian personnel into the Philippine


territory is already allowed under the VFA.

There are 3 distinct classes of America individuals involved under EDCA : US


military personnel, US civilian personnel and US contractors. US personnel is
composed of fmilitary and civilian personnel. US contractors are not part of the US
personnel.
EDCA does not deal with the entry of US personnel per se because its words
indicate that this group has already been previously allowed entry into the
Philippines via VFA. What the EDCA has effectively done is only to provide a
mechanism to identify the locations within which the US personnel may perform
the activities pursuant to the VFA.
EDCA does not provide a legal basis for admission of US contractors into the
Philippine territory; their entry must be sourced from Philippine statutes and
regulations for the admission of alien employees or business persons.

US contractors are not explicitly mentioned in EDCA because they are not granted
the same entry accomodations and privileges enjoyed by US military and civilian
personnel. Hence, they are subject to our Immigration laws like visa and passport
regulations and prove that they are not subject to exclusion under the provisions of
Philippine immigration laws . They may also be denied entry and be deported as
necessities arise.

In contrast, VFA requires a request for removal from the Philippine government
before any member of the US personnel may be removed outside the Philippine
territory.

Authorized activities of US military and civilian personnel within the


Philippine territory are in furtherance of the MDT and VFA.

The activities referred to in the VFA are meant to be specified in further


agreements . EDCA is one such agreement. In sum, the MDT, VFA and EDCA
seek to maintain and develop individual and collective defensive capacity to resist
armed attacks or threats.

While petitioners assert that EDCA is actually of a permanent nature since its
initial period of 10 years is automatically renewed gives it a perpetual allowance to
stay. On this issue, the Court notes that EDCA is automatically renewed after 10
years, however, any one of the parties can terminate the agreement unilaterally
with just a requirement of one years notice before the intended termination.

Authorized activities performed by US contractors within the Philippine


territory- who were legitimately permitted to enter the country independent of
EDCA- be are subject to relevant Philippines laws and must be consistent with
the MDT and VFA.

While petitoners assert that these contractors have historically been implicated in
scandals in other parts of the globe involving rendition, torture and human rights
violations, EDCA requires that all activities within the Philippine territory be in
accordance with Philippine laws. Hence certain privileges denied to aliens are
likewise denied to foreign military contractors.

The Court cannot take judicial notice of claims aired in the news reports because
they must be proved first according to the Rules of Evidence. Further, it cannot be
speculated that what is happening to other countires regarding the illegal activities
would take place in the Philippines with certainty.

EDCA provides for the return of the Agreed Locations once no longer
required by the US forces for activities under the said agreement.
This contradicts the petitioners claim of badges of exclusivity as to the Agreed
Locations. It must be noted that the Agreed Locations to be returned would be
based on the authority given to the US by a body represented by both the US and
the Philippines.

Unimpeded access to the Agreed Locations as stipulated in the EDCA.

It must be noted that the US personnel are to bring equipment, supplies and
materiel to the Agreed Locations for the activities under EDCA. These materials
are then owned by the US but just physically stored or billeted in the Agreed
Locations. Therefore, unimpeded access to these Agreed Locations is a necessary
adjunct to the ownership, use and control of their own equipment. It is not the
unimpeded access to the Agreed locations per se but mere access to items in the
Agreed locations in order to exercise the rights of ownership granted by virtue of
the Philippine Civil Code.

EDCA authorizes the use of public utilities and operate their own
telecommunications.

EDCA does not provide telecommunication services to the public for


compensation. Under its provision, such telecommunication system is solely for
the use of the US and not the public in general and that this system will not
interfere with that which local operators use. Consequently, a public franchise is no
longer necessary.

There are certain standards to determine whether a military base or facility in


the Philippines is foreign or remains a Philippine military base or facility:
1. Independence from foreign control
2. Sovereignty and applicable law
3. National security and territorial integrity
Brion Dissent

Yes, but on a different line of reasoning. The petitioners satisfied the requirement
of legal standing in asserting that a public right has been violated through the
commission of an act with grave abuse of discretion. The court may exercise its
power of judicial review over the act of the Executive Department in not
submitting the EDCA agreement for Senate concurrence not because of the
transcendental importance of the issue, but because the petitioners satisfy the
requirements in invoking the courts expanded jurisdiction. Read more

Issue 5: W/N the non-submission of the EDCA agreement for concurrence by the
Senate violates the Constitution

No. The EDCA need not be submitted to the Senate for concurrence because it is
in the form of a mere executive agreement, not a treaty. Under the Constitution,
the President is empowered to enter into executive agreements on foreign military
bases, troops or facilities if

(1) such agreement is not the instrument that allows the entry of such, and

(2) if it merely aims to implement an existing law or treaty.

EDCA is in the form of an executive agreement since it merely involves


adjustments in detail in the implementation of the MTD and the VFA. These are
existing treaties between the Philippines and the U.S. that have already been
concurred in by the Philippine Senate and have thereby met the requirements of the
Constitution under Art XVIII, Sec 25. Because of the status of these prior
agreements, EDCA need not be transmitted to the Senate.
De Castro Dissent

No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the
MDT. Whether the stay of the foreign troops in the country is permanent or
temporary is immaterial because the Constitution does not distinguish. The EDCA
clearly involves the entry of foreign military bases, troops or facilities in the
country. Hence, the absence of Senate concurrence to the agreement makes it an
invalid treaty. Read more

To recall, the Philippines and the U.S. entered into the MDT in 195157 with two
things in mind,

first, it allowed for mutual assistance in maintaining and developing their


individual and collective capacities to resist an armed attack; and

second, it provided for their mutual self-defense in the event of an armed attack
against the territory of either party. The treaty was premised on their recognition
that an armed attack on either of them would equally be a threat to the security of
the other.

The EDCA embodies this very purpose. It puts into greater effect a treaty entered
into more than 50 years ago in order to safeguard the sovereignty of the
Philippines, and cement the military friendship of the U.S. and Philippines that has
thrived for decades through multiple presidents and multiple treaties. While it is a
fact that our country is now independent, and that the 1987 Constitution requires
Senate consent for foreign military bases, troops, and facilities, the EDCA as
envisioned by the executive and as formulated falls within the legal regime of the
MDT and the VF A.

In the context of recent developments, the President is bound to defend the EEZ of
the Philippines and ensure its vast maritime wealth for the exclusive enjoyment of
Filipinos. In this light, he is obligated to equip himself with all resources within his
power to command. With the MDT and VFA as a blueprint and guide, EDCA
strengthens the Armed Forces of the Philippines and through them, the Presidents
ability to respond to any potential military crisis with sufficient haste and greater
strength.

The Republic of Indonesia is strengthening its military presence and defences in


the South China Sea. Vietnam has lent its voice in support of the settlement of
disputes by peaceful means but still strongly asserts its sovereignty over the
Paracel islands against China. The international community has given its voice in
support of the tribunals decision in the UN CLOS arbitration.
Despite all this, China has rejected the ruling.65 Its ships have continued to drive
off Filipino fishermen from areas within the Philippines EEZ. 66 Its military
officials have promised to continue its artificial islandbuilding in the contested
areas despite the ruling against these activities.

In this light, the Philippines must continue to ensure its ability to prevent any
military aggression that violates its sovereign rights. Whether the threat is internal
or external is a matter for the proper authorities to decide. President Rodrigo Roa
Duterte has declared, in his inaugural speech, that the threats pervading society are
many: corruption, crime, drugs, and the breakdown of law and order. 68 He has
stated that the Republic of the Philippines will honor treaties and inten1ational
obligations. 69 He has also openly supported EDCAs continuation.

Thus, we find no reason for EDCA to be declared unconstitutional. It fully


conforms to the Philippines legal regime through the MDT and VFA. It also fully
conforms to the governments continued policy to enhance our military capability
in the face of various military and humanitarian issues that may arise. This Motion
for Reconsideration has not raised any additional legal arguments that warrant
revisiting the Decision.