SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, be performed.
7 The Court will exercise its power of judicial
PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE
INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF
THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY
DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON
JACOB R. ROQUE, AHMED PAGLINAWAN, RON P.
SALO,* LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN,
NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME
ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL
FAGELA, and ROMEL BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO,
and the DEPARTMENT OF FOREIGN AFFAIRS, represented by
HON. BLAS OPLE, Respondents.
DECISION
PUNO J.:
This is a petition for mandamus filed by petitioners to compel
the
Office of the Executive Secretary and the Department of
Foreign Affairs to transmit the signed copy of the Rome Statute
of the International Criminal Court to the Senate of the
Philippines for its concurrence in accordance with Section 21,
Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court
which "shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal
jurisdictions."1 Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of
aggression as defined in the Statute.2 The Statute was opened
for signature by all states in Rome on July 17, 1998 and had
remained open for signature until December 31, 2000 at the
United Nations Headquarters in New York. The Philippines
signed the Statute on December 28, 2000 through Charge d’
Affairs Enrique A. Manalo of the Philippine Mission to the United
Nations.3 Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states.4
Petitioners filed the instant petition to compel the respondents
— the Office of the Executive Secretary and the Department
of Foreign Affairs — to transmit the signed text of the treaty to
the Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty,
under both domestic law and international law, is a function of
the Senate. Hence, it is the duty of the executive department
to transmit the signed copy of the Rome Statute to the Senate
to allow it to exercise its discretion with respect to ratification
of treaties. Moreover, petitioners submit that the Philippines
has a ministerial duty to ratify the Rome Statute under treaty
law and customary international law. Petitioners invoke the
Vienna Convention on the Law of Treaties enjoining the states
to refrain from acts which would defeat the object and
purpose of a treaty when they have signed the treaty prior to
ratification unless they have made their intention clear not to
become parties to the treaty.5
The Office of the Solicitor General, commenting for the
respondents, questioned the standing of the petitioners to file
the instant suit. It also contended that the petition at bar
violates the rule on hierarchy of courts. On the substantive
issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome
Statute to the Senate for concurrence.
A petition for mandamus may be filed when any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station.6 We have held
that to be given due course, a petition for mandamus must
have been instituted by a party aggrieved by the alleged
inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal
right. The petitioner in every case must therefore be an
aggrieved party in the sense that he possesses a clear legal
right to be enforced and a direct interest in the duty or act to
review only if the case is brought before it by a party who has
the legal standing to raise the constitutional or legal question.
"Legal standing" means a personal and substantial interest in
the case such that the party has sustained or will sustain direct
injury as a result of the government act that is being
challenged. The term "interest" is material interest, an interest in
issue and to be affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental
interest.8
The petition at bar was filed by Senator Aquilino Pimentel, Jr.
who asserts his legal standing to file the suit as member of the
Senate; Congresswoman Loretta Ann Rosales, a member of
the House of Representatives and Chairperson of its
Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is
composed of individuals and corporate entities dedicated to
the Philippine ratification of the Rome Statute; the Task Force
Detainees of the Philippines, a juridical entity with the avowed
purpose of promoting the cause of human rights and human
rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized
and existing pursuant to Philippine Laws with the avowed
purpose of promoting the cause of families and victims of
human rights violations in the country; Bianca Hacintha Roque
and Harrison Jacob Roque, aged two (2) and one (1),
respectively, at the time of filing of the instant petition, and
suing under the doctrine of inter-generational rights
enunciated in the case of Oposa vs. Factoran, Jr.;9 and a
group of fifth year working law students from the University of
the Philippines College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination
of difficult constitutional questions.10
We find that among the petitioners, only Senator Pimentel has
the legal standing to file the instant suit. The other petitioners
maintain their standing as advocates and defenders of
human rights, and as citizens of the country. They have not
shown, however, that they have sustained or will sustain a
direct injury from the non-transmittal of the signed text of the
Rome Statute to the Senate. Their contention that they will be
deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome
Statute is intended to complement national criminal laws and
courts. Sufficient remedies are available under our national
laws to protect our citizens against human rights violations and
petitioners can always seek redress for any abuse in our
domestic courts.
As regards Senator Pimentel, it has been held that "to the
extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to
participate in the exercise of the powers of that
institution."11 Thus, legislators have the standing to maintain
inviolate the prerogatives, powers and privileges vested by the
Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes
their prerogatives as legislators. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a
treaty entered into by the executive branch, in this case, the
Rome Statute. The petition seeks to order the executive
branch to transmit the copy of the treaty to the Senate to
allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to
assert such authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the
Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate the copy of
the Rome Statute signed by a member of the Philippine
Mission to the United Nations even without the signature of the
President.
We rule in the negative.
In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external
relations and is the country’s sole representative with foreign
nations.12 As the chief architect of foreign policy, the President
acts as the country’s mouthpiece with respect to international
affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations.13 In
the realm of treaty-making, the President has the sole authority
to negotiate with other states.
Nonetheless, while the President has the sole authority to
negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of
all the members of the Senate for the validity of the treaty
entered into by him. Section 21, Article VII of the 1987
Constitution provides that "no treaty or international
agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate." The 1935
and the 1973 Constitution also required the concurrence by
the legislature to the treaties entered into by the executive.
Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the
concurrence of two-thirds of all the Members of the Senate, to
make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution,
no treaty shall be valid and effective unless concurred in by a
majority of all the Members of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making
process was deemed essential to provide a check on the
executive in the field of foreign relations.14 By requiring the
concurrence of the legislature in the treaties entered into by
the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of
political maturity and growth.15
In filing this petition, the petitioners interpret Section 21, Article
VII of the 1987 Constitution to mean that the power to ratify
treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law,
describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of
ratification. The treaty may then be submitted for registration
and publication under the U.N. Charter, although this step is
not essential to the validity of the agreement as between the
parties.
Negotiation may be undertaken directly by the head of state
but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted, depending on
the issues involved, and may even "collapse" in case the
parties are unable to come to an agreement on the points
under consideration.
If and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature. This step is primarily
intended as a means of authenticating the instrument and for
the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state
in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat,
that is, each of the several negotiators is allowed to sign first on
the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a
state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of ratification is
to enable the contracting states to examine the treaty more
closely and to give them an opportunity to refuse to be bound
by it should they find it inimical to their interests. It is for this
reason that most treaties are made subject to the scrutiny and
consent of a department of the government other than that
which negotiated them.
xxx
The last step in the treaty-making process is the exchange of
the instruments of ratification, which usually also signifies the
effectivity of the treaty unless a different date has been
agreed upon by the parties. Where ratification is dispensed
with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.16 [emphasis
supplied]
Petitioners’ arguments equate the signing of the treaty by the
Philippine representative with ratification. It should be
underscored that the signing of the treaty and the ratification
are two separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is primarily intended
as a means of authenticating the instrument and as a symbol
of the good faith of the parties. It is usually performed by the
state’s authorized representative in the diplomatic mission.
Ratification, on the other hand, is the formal act by which a
state confirms and accepts the provisions of a treaty
concluded by its representative. It is generally held to be an
executive act, undertaken by the head of the state or of the
government.17 Thus, Executive Order No. 459 issued by
President Fidel V. Ramos on November 25, 1997 provides the
guidelines in the negotiation of international agreements and
its ratification. It mandates that after the treaty has been
signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The
Department of Foreign Affairs shall then prepare the
ratification papers and forward the signed copy of the treaty
to the President for ratification. After the President has ratified
the treaty, the Department of Foreign Affairs shall submit the
same to the Senate for concurrence. Upon receipt of the
concurrence of the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to render it
effective. Section 7 of Executive Order No. 459 reads:
Sec. 7.Domestic Requirements for the Entry into Force of a
Treaty or an Executive Agreement. — The domestic
requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as
follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the
Department of Foreign Affairs after their signing for the
preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits
which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the
endorsement by the concerned agency, shall transmit the
agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall
then be returned to the Department of Foreign Affairs for
appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with
the requirements provided in sub-paragraph[s] 1 and 2, item A
(Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the
Senate of the Philippines for concurrence in the ratification by
the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a
certified true copy of the ratification instrument, shall
accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the

Department of Foreign Affairs shall comply with the provision
of the treaties in effecting their entry into force.

Petitioners’ submission that the Philippines is bound under

treaty law and international law to ratify the treaty which it has
signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds
the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the
states be subject to ratification, acceptance or approval of
the signatory states. Ratification is the act by which the
provisions of a treaty are formally confirmed and approved by
a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such
treaty. After the treaty is signed by the state’s representative,
the President, being accountable to the people, is burdened
with the responsibility and the duty to carefully study the
contents of the treaty and ensure that they are not inimical to
the interest of the state and its people. Thus, the President has
the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The
Vienna Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of the head
of states. If that were so, the requirement of ratification of
treaties would be pointless and futile. It has been held that a
state has no legal or even moral duty to ratify a treaty which
has been signed by its plenipotentiaries.18 There is no legal
obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on
superficial or whimsical reasons. Otherwise, the other state
would be justified in taking offense.19

It should be emphasized that under our Constitution, the

power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or
concurrence, to the ratification.20 Hence, it is within the
authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse
to ratify it.21 Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should
not be taken lightly,22 such decision is within the competence
of the President alone, which cannot be encroached by this
Court via a writ of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the
performance of his official duties.23 The Court, therefore,
cannot issue the writ of mandamus prayed for by the
petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed
text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.
 G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF
CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, 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.
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 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. Commissioner of Customs, with cost against respondents
670-675; Hyde on International Law [Revised Edition], defendant-appellee, Eastern Sea Trading. It is so ordered.
Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S.
Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-
407). (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 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.)

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, made without 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 respondent-appellee 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.

WHEREFORE, the decision appealed from is hereby reversed

and another one shall be entered affirming that of the
 BAYAN (Bagong Alyansang Makabayan), a JUNK VFA
MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina
Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA,
PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT
MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS
OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON.
ORLANDO MERCADO, as Secretary of National Defense, and
HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R.
OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L.
SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN,
FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its
National President, Jose Aguila Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President,
Republic of the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-
AVENCEÑA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE
PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS
ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT
(VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated
petitions for certiorari and prohibition are issues relating to, and
borne by, an agreement forged in the turn of the last century
between the Republic of the Philippines and the United States
of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of
America forged a Military Bases Agreement which formalized,
among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty on August
30, 1951. Under the treaty, the parties agreed to respond to
any external armed attack on their territory, armed forces,
public vessels, and aircraft.1
In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States
negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate
rejected the proposed RP-US Treaty of Friendship, Cooperation
and Security which, in effect, would have extended the
presence of US military bases in the Philippines.2 With the
expiration of the RP-US Military Bases Agreement, the periodic
military exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and security
relationship between the Philippines and the United States of
America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US
Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes
on "the complementing strategic interests of the United States
and the Philippines in the Asia-Pacific region." Both sides
discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by
both panels on the VFA led to a consolidated draft text, which
in turn resulted to a final series of conferences and
negotiations3 that culminated in Manila on January 12 and 13,
1998. Thereafter, then President Fidel V. Ramos approved the
VFA, which was respectively signed by public respondent
Secretary Siazon and Unites States Ambassador Thomas
Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA. 4
On October 6, 1998, the President, acting through respondent
Executive Secretary Ronaldo Zamora, officially transmitted to
the Senate of the Philippines,5 the Instrument of Ratification,
the letter of the President6 and the VFA, for concurrence
pursuant to Section 21, Article VII of the 1987 Constitution. The
Senate, in turn, referred the VFA to its Committee on Foreign
Relations, chaired by Senator Blas F. Ople, and its Committee
on National Defense and Security, chaired by Senator Rodolfo
G. Biazon, for their joint consideration and recommendation.
Thereafter, joint public hearings were held by the two
Committees.7
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 4438 recommending the concurrence of the
Senate to the VFA and the creation of a Legislative Oversight
Committee to oversee its implementation. Debates then
ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was
approved by the Senate, by a two-thirds (2/3) vote9 of its
members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.10
On June 1, 1999, the VFA officially entered into force after an
Exchange of Notes between respondent Secretary Siazon and
United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles,
provides for the mechanism for regulating the circumstances
and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in
its full text, hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means
United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military
members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.
"2. The term ‘civilian personnel’ refers to individuals
who are neither nationals of, nor ordinary residents in
the Philippines and who are employed by the United
States armed forces or who are accompanying the
United States armed forces, such as employees of the
American Red Cross and the United Services
Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws
of the Republic of the Philippines and to abstain from any
activity inconsistent with the spirit of this agreement, and, in
particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within
its authority to ensure that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate
the admission of United States personnel and their
departure from the Philippines in connection with
activities covered by this agreement.
"2. United States military personnel shall be exempt
from passport and visa regulations upon entering and
departing the Philippines.
"3. The following documents only, which shall be
presented on demand, shall be required in respect of
United States military personnel who enter the
Philippines:
"(a) personal identity card issued by the
appropriate United States authority showing
full name, date of birth, rank or grade and
service number (if any), branch of service and
photograph;
"(b) individual or collective document issued
by the appropriate United States authority,
authorizing the travel or visit and identifying
the individual or group as United States
military personnel; and
"(c) the commanding officer of a military
aircraft or vessel shall present a declaration of
health, and when required by the cognizant
representative of the Government of the
Philippines, shall conduct a quarantine
inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft
or United States vessels or cargoes thereon
shall be conducted by the United States
commanding officer in accordance with the
international health regulations as
promulgated by the World Health
Organization, and mutually agreed
procedures.
"4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and departure of
the Philippines.
"5. If the Government of the Philippines has requested
the removal of any United States personnel from its
territory, the United States authorities shall be
responsible for receiving the person concerned within
its own territory or otherwise disposing of said person
outside of the Philippines.
"Article IV
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without
test or fee, a driving permit or license issued by the
appropriate United States authority to United States
personnel for the operation of military or official
vehicles.
"2. Vehicles owned by the Government of the United
States need not be registered, but shall have
appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over
United States personnel with respect to offenses
committed within the Philippines and punishable
under the law of the Philippines.
(b) United States military authorities shall have the right
to exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the
military law of the United States over United States
personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including
offenses relating to the security of the Philippines, punishable
under the laws of the Philippines, but not under the laws of the
United States.
(b) United States authorities exercise exclusive
jurisdiction over United States personnel with respect
to offenses, including offenses relating to the security
of the United States, punishable under the laws of the
United States, but not under the laws of the
Philippines.
(c) For the purposes of this paragraph and paragraph
3 of this article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any
law relating to national defense.
"3. In cases where the right to exercise jurisdiction is
concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to
exercise jurisdiction over all offenses committed by
United States personnel, except in cases provided for
in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the
primary right to exercise jurisdiction over United States
personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or
security of the United States or offenses solely
against the property or person of United
States personnel; and
 (2) offenses arising out of any act or omission
done in performance of official duty.
(c) The authorities of either government may
request the authorities of the other
government to waive their primary right to
exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United
States military authorities to maintain good
order and discipline among their forces,
Philippine authorities will, upon request by the
United States, waive their primary right to
exercise jurisdiction except in cases of
particular importance to the Philippines. If the
Government of the Philippines determines
that the case is of particular importance, it
shall communicate such determination to the
United States authorities within twenty (20)
days after the Philippine authorities receive
the United States request.
(e) When the United States military
commander determines that an offense
charged by authorities of the Philippines
against United states personnel arises out of
an act or omission done in the performance
of official duty, the commander will issue a
certificate setting forth such determination.
This certificate will be transmitted to the
appropriate authorities of the Philippines and
will constitute sufficient proof of performance
of official duty for the purposes of paragraph
3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the
circumstances of the case require a review of
the duty certificate, United States military
authorities and Philippine authorities shall
consult immediately. Philippine authorities at
the highest levels may also present any
information bearing on its validity. United
States military authorities shall take full
account of the Philippine position. Where
appropriate, United States military authorities
will take disciplinary or other action against
offenders in official duty cases, and notify the
Government of the Philippines of the actions
taken.
(f) If the government having the primary right
does not exercise jurisdiction, it shall notify the
authorities of the other government as soon
as possible.
(g) The authorities of the Philippines and the
United States shall notify each other of the
disposition of all cases in which both the
authorities of the Philippines and the United
States have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities
of the Philippines and United States shall assist each other in
the arrest of United States personnel in the Philippines and in
handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
"5. United States military authorities shall promptly notify
Philippine authorities of the arrest or detention of United States
personnel who are subject of Philippine primary or exclusive
jurisdiction. Philippine authorities shall promptly notify United
States military authorities of the arrest or detention of any
United States personnel.
"6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside
with United States military authorities, if they so request, from
the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon
formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in
time for any investigative or judicial proceedings relating to
the offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present
its position to the United States Government regarding
custody, which the United States Government shall take into
full account. In the event Philippine judicial proceedings are
not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one-year
period will not include the time necessary to appeal. Also, the
one-year period will not include any time during which
scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to
do so.
"7. Within the scope of their legal authority, United States and
Philippine authorities shall assist each other in the carrying out
of all necessary investigation into offenses and shall cooperate
in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and,
in proper cases, the delivery of objects connected with an
offense.
"8. When United States personnel have been tried in
accordance with the provisions of this Article and have been
acquitted or have been convicted and are serving, or have
served their sentence, or have had their sentence remitted or
suspended, or have been pardoned, they may not be tried
again for the same offense in the Philippines. Nothing in this
paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation
of rules of discipline arising from the act or omission which
constituted an offense for which they were tried by Philippine
authorities.
"9. When United States personnel are detained, taken into
custody, or prosecuted by Philippine authorities, they shall be
accorded all procedural safeguards established by the law of
the Philippines. At the minimum, United States personnel shall
be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific
charge or charges made against them and to have
reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and
to cross examine such witnesses;
(d) To present evidence in their defense and to have
compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of
their own choice on the same basis as nationals of the
Philippines;
(f) To have the service of a competent interpreter;
and
(g) To communicate promptly with and to be visited
regularly by United States authorities, and to have
such authorities present at all judicial proceedings.
These proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons
who have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed
on by appropriate Philippine and United States authorities.
United States Personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
"11. United States personnel shall be subject to trial only in
Philippine courts of ordinary jurisdiction, and shall not be
subject to the jurisdiction of Philippine military or religious
courts.
"Article VI
Claims
"1. Except for contractual arrangements, including
United States foreign military sales letters of offer and
acceptance and leases of military equipment, both
governments waive any and all claims against each
other for damage, loss or destruction to property of
each other’s armed forces or for death or injury to
their military and civilian personnel arising from
activities to which this agreement applies.
"2. For claims against the United States, other than
contractual claims and those to which paragraph 1
applies, the United States Government, in
accordance with United States law regarding foreign
claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss,
personal injury or death, caused by acts or omissions
of United States personnel, or otherwise incident to the
non-combat activities of the United States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials,
supplies, and other property imported into or acquired
in the Philippines by or on behalf of the United States
armed forces in connection with activities to which
this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such
property shall remain with the United States, which
may remove such property from the Philippines at any
time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph
shall also extend to any duty, tax, or other similar
charges which would otherwise be assessed upon
such property after importation into, or acquisition
within, the Philippines. Such property may be removed
from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to
persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval
of the Philippine Government.
"2. Reasonable quantities of personal baggage,
personal effects, and other property for the personal
use of United States personnel may be imported into
and used in the Philippines free of all duties, taxes and
other similar charges during the period of their
temporary stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of
the appropriate Philippine authorities including
payment by the recipient of applicable duties and
taxes imposed in accordance with the laws of the
Philippines. The exportation of such property and of
property acquired in the Philippines by United States
personnel shall be free of all Philippine duties, taxes,
and other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.
"2. Vessels operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of
vessels shall be in accordance with international
custom and practice governing such vessels, and
such agreed implementing arrangements as
necessary.
"3. Vehicles, vessels, and aircraft operated by or for
the United States armed forces shall not be subject to
the payment of landing or port fees, navigation or
over flight charges, or tolls or other use charges,
including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United
States armed forces shall observe local air traffic
control regulations while in the Philippines. Vessels
owned or operated by the United States solely on
United States Government non-commercial service
shall not be subject to compulsory pilotage at
Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which
the parties have notified each other in writing through the
diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement
shall remain in force until the expiration of 180 days from the
date on which either party gives the other party notice in
writing that it desires to terminate the agreement."
Via these consolidated11 petitions for certiorari and prohibition,
petitioners - as legislators, non-governmental organizations,
citizens and taxpayers - assail the constitutionality of the VFA
and impute to herein respondents grave abuse of discretion in
ratifying the agreement.
We have simplified the issues raised by the petitioners into the
following:
I
Do petitioners have legal standing as concerned citizens,
taxpayers, or legislators to question the constitutionality of the
VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII
or of Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine
sovereignty?
a. Are Philippine courts deprived of their jurisdiction to
hear and try offenses committed by US military
personnel?
b. Is the Supreme Court deprived of its jurisdiction over
offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article
III of the Constitution?
b. the Prohibition against nuclear weapons under
Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting
the exemption from taxes and duties for the
equipment, materials supplies and other properties
imported into or acquired in the Philippines by, or on
behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to
sue, on the ground that the latter have not shown any interest
in the case, and that petitioners failed to substantiate that
they have sustained, or will sustain direct injury as a result of
the operation of the VFA. 12 Petitioners, on the other hand,
counter that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing.13
A party bringing a suit challenging the constitutionality of a
law, act, or statute must show "not only that the law is invalid,
but also that he has sustained or in is in immediate, or
imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in
some indefinite way." He must show that he has been, or is
about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some
burdens or penalties by reason of the statute complained of.14
In the case before us, petitioners failed to show, to the
satisfaction of this Court, that they have sustained, or are in
danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of
its taxing or spending powers.15 On this point, it bears stressing
that a taxpayer’s suit refers to a case where the act
complained of directly involves the illegal disbursement of
public funds derived from taxation.16 Thus, in Bugnay Const. &
Development Corp. vs. Laron17 , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show
that he would be benefited or injured by the judgment or
entitled to the avails of the suit as a real party in interest.
Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing
the illegal expenditure of money raised by taxation and that
he will sustain a direct injury as a result of the enforcement of
the questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members of the
public."
Clearly, inasmuch as no public funds raised by taxation are
involved in this case, and in the absence of any allegation by
petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to
assail the legality of the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino
and Joker Arroyo, as petitioners-legislators, do not possess the
requisite locus standi to maintain the present suit. While this
Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,18 sustained the legal standing of a member of the
Senate and the House of Representatives to question the
validity of a presidential veto or a condition imposed on an
item in an appropriation bull, we cannot, at this instance,
similarly uphold petitioners’ standing as members of Congress,
in the absence of a clear showing of any direct injury to their
person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power,
such as the delegation of the power of Congress to grant tax
exemptions, are more apparent than real. While it may be true
that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed
however to sufficiently show that they have in fact suffered
direct injury.
In the same vein, petitioner Integrated Bar of the Philippines
(IBP) is stripped of standing in these cases. As aptly observed
by the Solicitor General, the IBP lacks the legal capacity to
bring this suit in the absence of a board resolution from its
Board of Governors authorizing its National President to
commence the present action.19
Notwithstanding, in view of the paramount importance and
the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of
the petitions, as we have done in the early Emergency Powers
Cases,20 where we had occasion to rule:
"x x x ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders issued by
President Quirino although they were involving only an indirect
and general interest shared in common with the public. The
Court dismissed the objection that they were not proper
parties and ruled that ‘transcendental importance to the
public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must, technicalities of
procedure.’ We have since then applied the exception in
many other cases. (Association of Small Landowners in the
Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)."
(Underscoring Supplied)
This principle was reiterated in the subsequent cases
of Gonzales vs. COMELEC,21 Daza vs. Singson,22 and Basco vs.
Phil. Amusement and Gaming Corporation,23 where we
emphatically held:
"Considering however the importance to the public of the
case at bar, and in keeping with the Court’s duty, under the
1987 Constitution, to determine whether or not the other
branches of the government have kept themselves within the
limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance
of this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona,
Jr.,24 thisCourt ruled that in cases of transcendental
importance, the Court may relax the standing requirements
and allow a suit to prosper even where there is no direct injury
to the party claiming the right of judicial review.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of separation of
powers, which enjoins upon the departments of the
government a becoming respect for each others’ acts,25 this
Court nevertheless resolves to take cognizance of the instant
petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the
determination of which provision of the Constitution applies,
with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section
25, Article XVIII is applicable considering that the VFA has for its
subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that
Section 21, Article VII should apply inasmuch as the VFA is not
a basing arrangement but an agreement which involves
merely the temporary visits of United States personnel
engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions
requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
"No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the senate and, when the
Congress so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State."
Section 21, Article VII deals with treatise or international
agreements in general, in which case, the concurrence of at
least two-thirds (2/3) of all the Members of the Senate is
required to make the subject treaty, or international
agreement, valid and binding on the part of the Philippines.
This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty
with a wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in nature. All
treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that "foreign
military bases, troops, or facilities" may be allowed in the
Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress,
and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far
from contradicting each other, actually share some common
ground. These constitutional provisions both embody phrases
in the negative and thus, are deemed prohibitory in mandate
and character. In particular, Section 21 opens with the clause
"No treaty x x x," and Section 25 contains the phrase "shall not
be allowed." Additionally, in both instances, the concurrence
of the Senate is indispensable to render the treaty or
international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the
Senate under Section 21, Article VII, and that the Senate
extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21,
Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the
treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals
with treaties involving foreign military bases, troops, or facilities,
should apply in the instant case. To a certain extent and in a
limited sense, however, the provisions of section 21, Article VII
will find applicability with regard to the issue and for the sole
purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further
discussed hereunder.
It is a finely-imbedded principle in statutory construction that a
special provision or law prevails over a general one. Lex
specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which,
in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to
affect only such cases within its general language which are
not within the provision of the particular enactment.26
In Leveriza vs. Intermediate Appellate Court,27 we enunciated:
"x x x that another basic principle of statutory construction
mandates that general legislation must give way to a special
legislation on the same subject, and generally be so
interpreted as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo vs. de los Angeles,
96 SCRA 139), that a specific statute prevails over a general
statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a
particular case, the one designed therefor specially should
prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that
there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution
makes no distinction between "transient’ and "permanent".
Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction
is made by law, the Court should not distinguish- Ubi lex non
distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that
Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional
provision reveals that the proscription covers "foreign military
bases, troops, or facilities." Stated differently, this prohibition is
not limited to the entry of troops and facilities without any
foreign bases being established. The clause does not refer to
"foreign military bases, troops, or facilities" collectively but
treats them as separate and independent subjects. The use of
comma and the disjunctive word "or" clearly signifies
disassociation and independence of one thing from the others
included in the enumeration,28 such that, the provision
contemplates three different situations - a military treaty the
subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone
places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as
manifested during the deliberations of the 1986 Constitutional
Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas.
This formulation speaks of three things: foreign military bases,
troops or facilities. My first question is: If the country does enter
into such kind of a treaty, must it cover the three-bases, troops
or facilities-or could the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers
only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government
can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the
government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a
little bit more, we will find some. We just want to cover
everything."29 (Underscoring Supplied)
Moreover, military bases established within the territory of
another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as
nuclear weapons, guided missiles as well as huge sea vessels
that can stay afloat in the sea even for months and years
without returning to their home country. These military warships
are actually used as substitutes for a land-home base not only
of military aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of whether or
not the requirements of Section 25 were complied with when
the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops,
or facilities in the country, unless the following conditions are
sufficiently met, viz: (a) it must be under a treaty; (b) the treaty
must be duly concurred in by the Senate and, when so
required by congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized
as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites
in the case of the VFA. The concurrence handed by the
Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress has
not required it.
As to the matter of voting, Section 21, Article VII particularly
requires that a treaty or international agreement, to be valid
and effective, must be concurred in by at least two-thirds of
all the members of the Senate. On the other hand, Section 25,
Article XVIII simply provides that the treaty be "duly concurred
in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds
vote of all the members of the Senate is clearly required so
that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25,
Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be "duly concurred in by the Senate,"
it is very true however that said provision must be related and
viewed in light of the clear mandate embodied in Section 21,
Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be
made by a two -thirds vote of all the members of the Senate.
Indeed, Section 25, Article XVIII must not be treated in isolation
to section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25,
Article XVIII must be construed in relation to the provisions of
Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25,
Article XVIII means that at least two-thirds of all the members
of the Senate favorably vote to concur with the treaty-the VFA
in the instant case.
Under these circumstances, the charter provides that the
Senate shall be composed of twenty-four (24)
Senators.30Without a tinge of doubt, two-thirds (2/3) of this
figure, or not less than sixteen (16) members, favorably acting
on the proposal is an unquestionable compliance with the
requisite number of votes mentioned in Section 21 of Article
VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made,31 will not
alter in any significant way the circumstance that more than
two-thirds of the members of the Senate concurred with the
proposed VFA, even if the two-thirds vote requirement is
based on this figure of actual members (23). In this regard, the
fundamental law is clear that two-thirds of the 24 Senators, or
at least 16 favorable votes, suffice so as to render compliance
with the strict constitutional mandate of giving concurrence to
the subject treaty.
Having resolved that the first two requisites prescribed in
Section 25, Article XVIII are present, we shall now pass upon
and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase "recognized as a treaty,"
embodied in section 25, Article XVIII, means that the VFA
should have the advice and consent of the United States
Senate pursuant to its own constitutional process, and that it
should not be considered merely an executive agreement by
the United States.
In opposition, respondents argue that the letter of United
States Ambassador Hubbard stating that the VFA is binding on
the United States Government is conclusive, on the point that
the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding,
must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase "recognized as a
treaty" means that the other contracting party accepts or
acknowledges the agreement as a treaty.32 To require the
other contracting state, the United States of America in this
case, to submit the VFA to the United States Senate for
concurrence pursuant to its Constitution,33 is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the
significance thus attached to them prevails. Its language
should be understood in the sense they have in common
use.34
Moreover, it is inconsequential whether the United States treats
the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a
treaty.35 To be sure, as long as the VFA possesses the elements
of an agreement under international law, the said agreement
is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of
Treaties, is "an international instrument concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments, and whatever its particular
designation."36 There are many other terms used for a treaty or
international agreement, some of which are: act, protocol,
agreement, compromis d’ arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international
agreements included under the general term treaty have little
or no legal significance. Certain terms are useful, but they
furnish little more than mere description.37
Article 2(2) of the Vienna Convention provides that "the
provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the
internal law of the State."
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating
functionaries have remained within their
powers.38 International law continues to make no distinction
between treaties and executive agreements: they are equally
binding obligations upon nations.39
In our jurisdiction, we have recognized the binding effect of
executive agreements even without the concurrence of the
Senate or Congress. In Commissioner of Customs vs. Eastern
Sea Trading,40 we had occasion to pronounce:
"x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent congressional
approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive
agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly
recognized the validity and constitutionality of executive
agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203,
86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal,
Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-
675; Hyde on International Law [revised Edition], Vol. 2, pp.
1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I
[2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V,
pp. 210-218; Hackworth, International Law Digest, Vol. V, pp.
390-407). (Italics Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which
drafted the 1987 Constitution is enlightening and highly-
instructive:
"MR. MAAMBONG. Of course it goes without saying that as far
as ratification of the other state is concerned, that is entirely
their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they
say that we have done everything to make it a treaty, then as
far as we are concerned, we will accept it as a treaty."41
The records reveal that the United States Government,
through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to
the terms of the VFA.42 For as long as the united States of
America accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under the
treaty, there is indeed marked compliance with the mandate
of the Constitution.
Worth stressing too, is that the ratification, by the President, of
the VFA and the concurrence of the Senate should be taken
as a clear an unequivocal expression of our nation’s consent
to be bound by said treaty, with the concomitant duty to
uphold the obligations and responsibilities embodied
thereunder.
Ratification is generally held to be an executive act,
undertaken by the head of the state or of the government, as
the case may be, through which the formal acceptance of
the treaty is proclaimed.43 A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of
the State to be bound by a treaty is expressed by ratification
when: (a) the treaty provides for such ratification, (b) it is
otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the
State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification
appears from the full powers of its representative, or was
expressed during the negotiation.44
In our jurisdiction, the power to ratify is vested in the President
and not, as commonly believed, in the legislature. The role of
the Senate is limited only to giving or withholding its consent,
or concurrence, to the ratification.45
With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement.
Thus, no less than Section 2, Article II of the
Constitution,46 declares that the Philippines adopts the
generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all
nations.
As a member of the family of nations, the Philippines agrees to
be bound by generally accepted rules for the conduct of its
international relations. While the international obligation
devolves upon the state and not upon any particular branch,
institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed
by any branch or subdivision of its government or any official
thereof. As an integral part of the community of nations, we
are responsible to assure that our government, Constitution
and laws will carry out our international obligation.47 Hence,
we cannot readily plead the Constitution as a convenient
excuse for non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties
of States adopted by the International Law Commission in
1949 provides: "Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this
duty."48
Equally important is Article 26 of the convention which
provides that "Every treaty in force is binding upon the parties
to it and must be performed by them in good faith." This is
known as the principle of pacta sunt servanda which
preserves the sanctity of treaties and have been one of the
most fundamental principles of positive international law,
supported by the jurisprudence of international tribunals.49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily
faulted for exercising a power and performing a task
conferred upon him by the Constitution-the power to enter
into and ratify treaties. Through the expediency of Rule 65 of
the Rules of Court, petitioners in these consolidated cases
impute grave abuse of discretion on the part of the chief
Executive in ratifying the VFA, and referring the same to the
Senate pursuant to the provisions of Section 21, Article VII of
the Constitution.
On this particular matter, grave abuse of discretion implies
such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, when the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross
as to amount to an evasion of positive duty enjoined or to act
at all in contemplation of law.50
By constitutional fiat and by the intrinsic nature of his office,
the President, as head of State, is the sole organ and authority
in the external affairs of the country. In many ways, the
President is the chief architect of the nation’s foreign policy;
his "dominance in the field of foreign relations is (then)
conceded."51 Wielding vast powers an influence, his conduct
in the external affairs of the nation, as Jefferson describes, is
"executive altogether."52
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two-thirds vote of
all the members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers
granted him no less than by the fundamental law itself. Into
the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.53 Consequently, the
acts or judgment calls of the President involving the VFA-
specifically the acts of ratification and entering into a treaty
and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck
down, much less calibrated by this Court, in the absence of
clear showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying
the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the
powers vested in him by the Constitution. It is of no moment
that the President, in the exercise of his wide latitude of
discretion and in the honest belief that the VFA falls within the
ambit of Section 21, Article VII of the Constitution, referred the
VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be imputed to
the President in his act of ratifying the VFA and referring the
same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law.
In doing so, the President merely performed a constitutional
task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA to
the Senate for concurrence under the provisions of Section 21
of Article VII, instead of Section 25 of Article XVIII of the
Constitution, still, the President may not be faulted or scarred,
much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the

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

As to the power to concur with treaties, the constitution lodges

the same with the Senate alone.1âwphi1 Thus, once the
Senate56 performs that power, or exercises its prerogative
within the boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed to constitute
an abuse of power, much less grave abuse thereof. Corollarily,
the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having
simply performed a task conferred and sanctioned by no less
than the fundamental law.

For the role of the Senate in relation to treaties is essentially

legislative in character;57 the Senate, as an independent body
possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and
whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of
the act. In this sense, the Senate partakes a principal, yet
delicate, role in keeping the principles of separation of
powers and of checks and balances alive and vigilantly
ensures that these cherished rudiments remain true to their
form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring
power of the Senate, a healthy system of checks and
balances indispensable toward our nation’s pursuit of political
maturity and growth. True enough, rudimentary is the principle
that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion

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

WHEREFORE, in light of the foregoing disquisitions, the instant

petitions are hereby DISMISSED.

SO ORDERED.
 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.
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.
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 al-Qaeda ("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.
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-in-intervention on February 11, 2002.
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 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).3Five days later,
he approved the TOR, which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine
Constitution and all its activities shall be in
consonance with the laws of the land and the
provisions of the RP-US Visiting Forces Agreement
(VFA).
2. The conduct of this training Exercise is in
accordance with pertinent United Nations resolutions
against global terrorism as understood by the
respective parties.
3. No permanent US basing and support facilities shall
be established. Temporary structures such as those for
troop billeting, classroom instruction and messing may
be set up for use by RP and US Forces during the
Exercise.
4. The Exercise shall be implemented jointly by RP and
US Exercise Co-Directors under the authority of the
Chief of Staff, AFP. In no instance will US Forces
operate independently during field training exercises
(FTX). AFP and US Unit Commanders will retain
command over their respective forces under the
overall authority of the Exercise Co-Directors. RP and
US participants shall comply with operational
instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed
within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800
RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the
Exercise and other activities within the six month
Exercise period.
6. The Exercise is a mutual counter-terrorism advising,
assisting and training Exercise relative to Philippine
efforts against the ASG, and will be conducted on the
Island of Basilan. Further advising, assisting and training
exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be
for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special
Forces Teams shall be deployed with AFP field,
commanders. The US teams shall remain at the
Battalion Headquarters and, when approved,
Company Tactical headquarters where they can
observe and assess the performance of the AFP
Forces.
8. US exercise participants shall not engage in
combat, without prejudice to their right of self-
defense.
9. These terms of Reference are for purposes of this
Exercise only and do not create additional legal
obligations between the US Government and the
Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of
mutual military assisting, advising and training
of RP and US Forces with the primary
objective of enhancing the operational
capabilities of both forces to combat
terrorism.
b. At no time shall US Forces operate
independently within RP territory.
 c. Flight plans of all aircraft involved in the
exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a
country and area briefing at the start of the
Exercise. This briefing shall acquaint US Forces
on the culture and sensitivities of the Filipinos
and the provisions of the 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 common with the public. The Court dismissed
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. 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 02-1" 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
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 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.
We are not left completely unaided, however. The Vienna
Convention on the Law of Treaties, which contains provisos
governing interpretations of international agreements, state:
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
of the treaty and accepted by the other
parties as an instrument related to the party .
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.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of article 31, or to determine the meaning
when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or
obscure; or
(b) leads to a result which is manifestly absurd
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-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as
the building of school houses, medical and humanitarian
missions, and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that .'Balikatan
02-1," a "mutual anti- terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the V FA support the
conclusion that combat-related activities -as opposed
to combat itself -such as the one subject of the instant
petition, are indeed authorized.
That is not the end of the matter, though. Granted that
"Balikatan 02-1" is permitted under the terms of the VFA, what
may US forces legitimately do in furtherance of their aim to
provide advice, assistance and training in the global effort
against terrorism? Differently phrased, may American troops
actually engage in combat in Philippine territory? The Terms of
Reference are explicit enough. Paragraph 8 of section I
stipulates that US exercise participants may not engage
in combat "except in self-defense." We wryly note that this
sentiment is admirable in the abstract but difficult in
implementation. The target of "Balikatan 02-1 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 self-defense serves only
as camouflage to conceal the true nature of the exercise. A
clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the 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:
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
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.
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 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 of pacta
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
topic for a special civil action for certiorari. 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.
WHEREFORE, the petition and the petition-in-intervention are
hereby DISMISSED without prejudice to the filing of a new
petition sufficient in form and substance in the proper Regional
Trial Court.

In Ichong v. Hernandez,16 we ruled that the provisions of a SO ORDERED.

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 any treaty, 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
 RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN,
PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L.
ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL
PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT
OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY
ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA
PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS
ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ
ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-
LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST
REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO
OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C.
LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO
M. SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES
CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR
LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO
BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC
ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE
PHILIPPINES ON EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON,
ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT
FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL
PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA
ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO,
JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of
the Enhanced Defense Cooperation Agreement (EDCA)
between the Republic of the Philippines and the United States
of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that
petitioners lack standing to bring the suit. To support the
legality of their actions, respondents invoke the 1987
Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down
at the outset the basic parameters of the constitutional
powers and roles of the President and the Senate in respect of
the above issues. A more detailed discussion of these powers
and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE
PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of
Executive Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na
tutuparin ko nang buong katapatan at sigasig ang aking mga
tungkulin bilang Pangulo (o Pangalawang Pangulo o
Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at
ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang
mga batas nito, magiging makatarungan sa bawat tao, at
itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan
nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng
Pilipinas ayon sa Saligang Batas5
The 1987 Constitution has "vested the executive power in the
President of the Republic of the Philippines."6 While the
vastness of the executive power that has been consolidated
in the person of the President cannot be expressed fully in one
provision, the Constitution has stated the prime duty of the
government, of which the President is the head:
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend
the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal
military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the
Philippines, the power to call upon the people to defend the
State, and the President as Commander-in-Chief
The duty to protect the State and its people must be carried
out earnestly and effectively throughout the whole territory of
the Philippines in accordance with the constitutional provision
on national territory. Hence, the President of the Philippines, as
the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters
embraced therein and all other territories over which it has
sovereignty or jurisdiction. These territories consist of its
terrestrial, fluvial, and aerial domains; including its territorial
sea, the seabed, the subsoil, the insular shelves, and other
submarine areas; and the waters around, between, and
connecting the islands of the archipelago, regardless of their
breadth and dimensions.8
To carry out this important duty, the President is equipped with
authority over the Armed Forces of the Philippines
(AFP),9 which is the protector of the people and the state. The
AFP's role is to secure the sovereignty of the State and the
integrity of the national territory.10 In addition, the Executive is
constitutionally empowered to maintain peace and order;
protect life, liberty, and property; and promote the general
welfare.11
In recognition of these powers, Congress has specified that
the President must oversee, ensure, and reinforce our
defensive capabilities against external and internal
threats12 and, in the same vein, ensure that the country is
adequately prepared for all national and local emergencies
arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To
illustrate, the President may call out the AFP to prevent or
suppress instances of lawless violence, invasion or
rebellion,14 but not suspend the privilege of the writ of habeas
corpus for a period exceeding 60 days, or place the
Philippines or any part thereof under martial law exceeding
that same span. In the exercise of these powers, the President
is also duty-bound to submit a report to Congress, in person or
in writing, within 48 hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or
suspension. The same provision provides for the Supreme
Court's review of the factual basis for the proclamation or
suspension, as well as the promulgation of the decision within
30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ
in the conduct of foreign relations.15 Since every state has the
capacity to interact with and engage in relations with other
sovereign states,16 it is but logical that every state must vest in
an agent the authority to represent its interests to those other
sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to
the nation especially in times of war. It can only be entrusted
to that department of government which can act on the basis
of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the
world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs
is dominant and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment
and a plethora of other problems with equally undesirable
consequences.17
The role of the President in foreign affairs is qualified by the
Constitution in that the Chief Executive must give paramount
importance to the sovereignty of the nation, the integrity of its
territory, its interest, and the right of the sovereign Filipino
people to self-determination.18 In specific provisions, the
President's power is also limited, or at least shared, as in
Section 2 of Article II on the conduct of war; Sections 20 and
21 of Article VII on foreign loans, treaties, and international
agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article
XVIII on treaties and international agreements entered into
prior to the Constitution and on the presence of foreign
military troops, bases, or facilities.
D. The relationship between the two major presidential
functions and the role of the Senate
Clearly, the power to defend the State and to act as its
representative in the international sphere inheres in the person
of the President. This power, however, does not crystallize into
absolute discretion to craft whatever instrument the Chief
Executive so desires. As previously mentioned, the Senate has
a role in ensuring that treaties or international agreements the
President enters into, as contemplated in Section 21 of Article
VII of the Constitution, obtain the approval of two-thirds of its
members.
Previously, treaties under the 1973 Constitution required
ratification by a majority of the Batasang Pambansa,19except
in instances wherein the President "may enter into international
treaties or agreements as the national welfare and interest
may require."20 This left a large margin of discretion that the
President could use to bypass the Legislature altogether. This
was a departure from the 1935 Constitution, which explicitly
gave the President the power to enter into treaties only with
the concurrence of two-thirds of all the Members of the
Senate.21 The 1987 Constitution returned the Senate's
power22 and, with it, the legislative's traditional role in foreign
affairs.23
The responsibility of the President when it comes to treaties
and international agreements under the present Constitution is
therefore shared with the Senate. This shared role, petitioners
claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases,
and the transition to Philippine independence
The presence of the U.S. military forces in the country can be
traced to their pivotal victory in the 1898 Battle of Manila Bay
during the Spanish-American War.24 Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S. upon
its formal surrender a few months later.25 By 1899, the
Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to
impose colonial control over the Philippine Islands, General
Emilio Aguinaldo immediately led the Filipinos into an all-out
war against the U.S.27 The Filipinos were ultimately defeated in
the Philippine-American War, which lasted until 1902 and led
to the downfall of the first Philippine Republic.28 The Americans
henceforth began to strengthen their foothold in the
country.29 They took over and expanded the former Spanish
Naval Base in Subic Bay, Zambales, and put up a cavalry post
called Fort Stotsenberg in Pampanga, now known as Clark Air
Base.30
When talks of the eventual independence of the Philippine
Islands gained ground, the U.S. manifested the desire to
maintain military bases and armed forces in the country.31 The
U.S. Congress later enacted the Hare-Hawes-Cutting Act of
1933, which required that the proposed constitution of an
independent Philippines recognize the right of the U.S. to
maintain the latter's armed forces and military bases.32 The
Philippine Legislature rejected that law, as it also gave the U.S.
the power to unilaterally designate any part of Philippine
territory as a permanent military or naval base of the U.S.
within two years from complete independence.33
The U.S. Legislature subsequently crafted another law called
the Tydings-McDuffie Act or the Philippine Independence Act
of 1934. Compared to the old Hare-Hawes-Cutting Act, the
new law provided for the surrender to the Commonwealth
Government of "all military and other reservations" of the U.S.
government in the Philippines, except "naval reservations and
refueling stations."34 Furthermore, the law authorized the U.S.
President to enter into negotiations for the adjustment and
settlement of all questions relating to naval reservations and
fueling stations within two years after the Philippines would
have gained independence.35 Under the Tydings-McDuffie
Act, the U.S. President would proclaim the American
withdrawal and surrender of sovereignty over the islands 10
years after the inauguration of the new government in the
Philippines.36 This law eventually led to the promulgation of the
1935 Philippine Constitution.
The original plan to surrender the military bases changed.37 At
the height of the Second World War, the Philippine and the
U.S. Legislatures each passed resolutions authorizing their
respective Presidents to negotiate the matter of retaining
military bases in the country after the planned withdrawal of
the U.S.38 Subsequently, in 1946, the countries entered into the
Treaty of General Relations, in which the U.S. relinquished all
control and sovereignty over the Philippine Islands, except the
areas that would be covered by the American military bases
in the country.39 This treaty eventually led to the creation of
the post-colonial legal regime on which would hinge the
continued presence of U.S. military forces until 1991: the
Military Bases Agreement (MBA) of 1947, the Military Assistance
Agreement of 1947, and the Mutual Defense Treaty (MDT) of
1951.40
B. Former legal regime on the presence of U.S. armed forces in
the territory of an independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the
two countries entered into their first military arrangement
pursuant to the Treaty of General Relations - the 1947
MBA.41 The Senate concurred on the premise of "mutuality of
security interest,"42 which provided for the presence and
operation of 23 U.S. military bases in the Philippines for 99 years
or until the year 2046.43 The treaty also obliged the Philippines
to negotiate with the U.S. to allow the latter to expand the
existing bases or to acquire new ones as military necessity
might require.44
A number of significant amendments to the 1947 MBA were
made.45 With respect to its duration, the parties entered into
the Ramos-Rusk Agreement of 1966, which reduced the term
of the treaty from 99 years to a total of 44 years or until
1991.46 Concerning the number of U.S. military bases in the
country, the Bohlen-Serrano Memorandum of Agreement
provided for the return to the Philippines of 17 U.S. military
bases covering a total area of 117,075 hectares.47 Twelve
years later, the U.S. returned Sangley Point in Cavite City
through an exchange of notes.48 Then, through the Romulo-
Murphy Exchange of Notes of 1979, the parties agreed to the
recognition of Philippine sovereignty over Clark and Subic
Bases and the reduction of the areas that could be used by
the U.S. military.49 The agreement also provided for the
mandatory review of the treaty every five years.50 In 1983, the
parties revised the 1947 MBA through the Romualdez-
Armacost Agreement.51 The revision pertained to the
operational use of the military bases by the U.S. government
within the context of Philippine sovereignty,52 including the
need for prior consultation with the Philippine government on
the former' s use of the bases for military combat operations or
the establishment of long-range missiles.53
Pursuant to the legislative authorization granted under
Republic Act No. 9,54 the President also entered into the 1947
Military Assistance Agreement55 with the U.S. This executive
agreement established the conditions under which U.S. military
assistance would be granted to the Philippines,56 particularly
the provision of military arms, ammunitions, supplies,
equipment, vessels, services, and training for the latter's
defense forces.57 An exchange of notes in 1953 made it clear
that the agreement would remain in force until terminated by
any of the parties.58
To further strengthen their defense and security
relationship,59 the Philippines and the U.S. next entered into the
MDT in 1951. Concurred in by both the Philippine 60 and the
U.S.61 Senates, the treaty has two main features: first, it allowed
for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense
in the event of an armed attack against the territory of either
party.63 The treaty was premised on their recognition that an
armed attack on either of them would equally be a threat to
the security of the other.64
C. Current legal regime on the presence of U.S. armed forces
in the country
In view of the impending expiration of the 1947 MBA in 1991,
the Philippines and the U.S. negotiated for a possible renewal
of their defense and security relationship.65 Termed as the
Treaty of Friendship, Cooperation and Security, the countries
sought to recast their military ties by providing a new
framework for their defense cooperation and the use of
Philippine installations.66 One of the proposed provisions
included an arrangement in which U.S. forces would be
granted the use of certain installations within the Philippine
naval base in Subic.67 On 16 September 1991, the Senate
rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting
paucity of any formal agreement dealing with the treatment
of U.S. personnel in the Philippines led to the suspension in 1995
of large-scale joint military exercises.69In the meantime, the
respective governments of the two countries agreed 70 to hold
joint exercises at a substantially reduced level.71 The military
arrangements between them were revived in 1999 when they
concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the
VFA has laid down the regulatory mechanism for the
treatment of U.S. military and civilian personnel visiting the
country.74 It contains provisions on the entry and departure of
U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of
certain claims; the importation and exportation of equipment,
materials, supplies, and other pieces of property owned by the
U.S. government; and the movement of U.S. military vehicles,
vessels, and aircraft into and within the country.75 The
Philippines and the U.S. also entered into a second
counterpart agreement (VFA II), which in turn regulated the
treatment of Philippine military and civilian personnel visiting
the U.S.76 The Philippine Senate concurred in the first VFA on 27
May 1999.77
Beginning in January 2002, U.S. military and civilian personnel
started arriving in Mindanao to take part in joint military
exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant
to the MDT.79
In the same year, the Philippines and the U.S. entered into the
Mutual Logistics Support Agreement to "further the
interoperability, readiness, and effectiveness of their
respective military forces"80 in accordance with the MDT, the
Military Assistance Agreement of 1953, and the VFA. 81 The new
agreement outlined the basic terms, conditions, and
procedures for facilitating the reciprocal provision of logistics
support, supplies, and services between the military forces of
the two countries.82 The phrase "logistics support and services"
includes billeting, operations support, construction and use of
temporary structures, and storage services during an
approved activity under the existing military
arrangements.83 Already extended twice, the agreement will
last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and
conduct activities within certain "Agreed Locations" in the
country. It was not transmitted to the Senate on the
executive's understanding that to do so was no longer
necessary.85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary
internal requirements for the agreement to enter into force in
the two countries.86
According to the Philippine government, the conclusion of
EDCA was the result of intensive and comprehensive
negotiations in the course of almost two years.87 After eight
rounds of negotiations, the Secretary of National Defense and
the U.S. Ambassador to the Philippines signed the agreement
on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA
on 6 June 2014.89 The OSG clarified during the oral
arguments90 that the Philippine and the U.S. governments had
yet to agree formally on the specific sites of the Agreed
Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us
assailing the constitutionality of EDCA. They primarily argue
that it should have been in the form of a treaty concurred in
by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were
concluded and the parties ordered to file their respective
memoranda, the Senators adopted Senate Resolution No. (SR)
105.91 The resolution expresses the "strong sense"92 of the
Senators that for EDCA to become valid and effective, it must
first be transmitted to the Senate for deliberation and
concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive
Department committed grave abuse of discretion in entering
into EDCA in the form of an executive agreement. For this
reason, we cull the issues before us:
A. Whether the essential requisites for judicial review
are present
 B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or
facilities
C. Whether the provisions under EDCA are consistent
with the Constitution, as well as with existing laws and
treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have
been satisfied
Petitioners are hailing this Court's power of judicial review in
order to strike down EDCA for violating the Constitution. They
stress that our fundamental law is explicit in prohibiting the
presence of foreign military forces in the country, except
under a treaty concurred in by the Senate. Before this Court
may begin to analyze the constitutionality or validity of an
official act of a coequal branch of government, however,
petitioners must show that they have satisfied all the essential
requisites for judicial review.93
Distinguished from the general notion of judicial power, the
power of judicial review specially refers to both the authority
and the duty of this Court to determine whether a branch or
an instrumentality of government has acted beyond the
scope of the latter's constitutional powers.94 As articulated in
Section 1, Article VIII of the Constitution, the power of judicial
review involves the power to resolve cases in which the
questions concern the constitutionality or validity of any treaty,
international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court
exhaustively discussed this "moderating power" as part of the
system of checks and balances under the Constitution. In our
fundamental law, the role of the Court is to determine whether
a branch of government has adhered to the specific
restrictions and limitations of the latter's power:96
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision
but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to
be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings
of the various departments of the government. x x x. And the
judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the
Constitution.
xxxx
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so
provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
government intended to operate and function as a
harmonious whole, under a system of checks and balances,
and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. x x x. In our
case, this moderating power is granted, if not expressly, by
clear implication from section 2 of article VIII of [the 1935]
Constitution.
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties
in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly
is the power of judicial review under the Constitution. x x x x.
(Emphases supplied)
The power of judicial review has since been strengthened in
the 1987 Constitution. The scope of that power has been
extended to the determination of whether in matters
traditionally considered to be within the sphere of
appreciation of another branch of government, an exercise of
discretion has been attended with grave abuse.97 The
expansion of this power has made the political question
doctrine "no longer the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry
or review."98
This moderating power, however, must be exercised carefully
and only if it cannot be completely avoided. We stress that
our Constitution is so incisively designed that it identifies the
spheres of expertise within which the different branches of
government shall function and the questions of policy that
they shall resolve.99 Since the power of judicial review involves
the delicate exercise of examining the validity or
constitutionality of an act of a coequal branch of
government, this Court must continually exercise restraint to
avoid the risk of supplanting the wisdom of the constitutionally
appointed actor with that of its own.100
Even as we are left with no recourse but to bare our power to
check an act of a coequal branch of government - in this
case the executive - we must abide by the stringent
requirements for the exercise of that power under the
Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the
power of judicial review as enunciated in the concurring
opinion of U.S. Supreme Court Justice Brandeis in Ashwander v.
Tennessee Valley Authority.103 Francisco104 redressed these
"pillars" under the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated
only as required by the facts of the case
3. That judgment may not be sustained on some other
ground
4. That there be actual injury sustained by the party by
reason of the operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of
constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court
when it exercises its power of judicial review.105 Guided by
these pillars, it may invoke the power only when the following
four stringent requirements are satisfied: (a) there is an actual
case or controversy; (b) petitioners possess locus standi; (c) the
question of constitutionality is raised at the earliest opportunity;
and (d) the issue of constitutionality is the lis mota of the
case.106 Of these four, the first two conditions will be the focus
of our discussion.
1. Petitioners have shown the presence of an actual case or
controversy.
The OSG maintains107 that there is no actual case or
controversy that exists, since the Senators have not been
deprived of the opportunity to invoke the privileges of the
institution they are representing. It contends that the
nonparticipation of the Senators in the present petitions only
confirms that even they believe that EDCA is a binding
executive agreement that does not require their concurrence.
It must be emphasized that the Senate has already expressed
its position through SR 105.108 Through the Resolution, the
Senate has taken a position contrary to that of the OSG. As
the body tasked to participate in foreign affairs by ratifying
treaties, its belief that EDCA infringes upon its constitutional
role indicates that an actual controversy - albeit brought to
the Court by non-Senators, exists.
question involved must be material - an interest that is in issue
and will be affected by the official act - as distinguished from
being merely incidental or general.116 Clearly, it would be
insufficient to show that the law or any governmental act is
invalid, and that petitioners stand to suffer in some indefinite
way.117 They must show that they have a particular interest in
bringing the suit, and that they have been or are about to be
denied some right or privilege to which they are lawfully
entitled, or that they are about to be subjected to some
burden or penalty by reason of the act complained of.118 The
reason why those who challenge the validity of a law or an
international agreement are required to allege the existence
of a personal stake in the outcome of the controversy is "to
assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or
legislators' suits; the Senate as a body has the requisite
standing, but considering that it has not formally filed a
pleading to join the suit, as it merely conveyed to the Supreme
Court its sense that EDCA needs the Senate's concurrence to
be valid, petitioners continue to suffer from lack of standing.

Moreover, we cannot consider the sheer abstention of the

In assailing the constitutionality of a governmental act,
Senators from the present proceedings as basis for finding that
petitioners suing as citizens may dodge the requirement of
there is no actual case or controversy before us. We point out
having to establish a direct and personal interest if they show
that the focus of this requirement is the ripeness for
that the act affects a public right.120 In arguing that they have
adjudication of the matter at hand, as opposed to its being
legal standing, they claim121 that the case they have filed is a
merely conjectural or anticipatory.109 The case must involve a
concerned citizen's suit. But aside from general statements
definite and concrete issue involving real parties with
that the petitions involve the protection of a public right, and
conflicting legal rights and legal claims admitting of specific
that their constitutional rights as citizens would be violated,
relief through a decree conclusive in nature.110 It should not
they fail to make any specific assertion of a particular public
equate with a mere request for an opinion or advice on what
right that would be violated by the enforcement of EDCA. For
the law would be upon an abstract, hypothetical, or
their failure to do so, the present petitions cannot be
contingent state of facts.111 As explained in Angara v.
considered by the Court as citizens' suits that would justify a
Electoral Commission:112
disregard of the aforementioned requirements.

[The] power of judicial review is limited to actual cases and

controversies to be exercised after full opportunity of
argument by the parties, and limited further to the
constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the
executive and legislative departments of the government.
(Emphases supplied)
We find that the matter before us involves an actual case or
controversy that is already ripe for adjudication. The Executive
Department has already sent an official confirmation to the
U.S. Embassy that "all internal requirements of the Philippines x
x x have already been complied with."113 By this exchange of
diplomatic notes, the Executive Department effectively
performed the last act required under Article XII(l) of EDCA
before the agreement entered into force. Section 25, Article
XVIII of the Constitution, is clear that the presence of foreign
military forces in the country shall only be allowed by virtue of
a treaty concurred in by the Senate. Hence, the performance
of an official act by the Executive Department that led to the
entry into force of an executive agreement was sufficient to
satisfy the actual case or controversy requirement.
2. While petitioners Saguisag et. al., do not have legal
standing, they nonetheless raise issues involving matters of
transcendental importance.
The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental
act have the right of appearance to bring the matter to the
court for adjudication.114 They must show that they have a
personal and substantial interest in the case, such that they
have sustained or are in immediate danger of sustaining, some
direct injury as a consequence of the enforcement of the
challenged governmental act.115 Here, "interest" in the
In claiming that they have legal standing as taxpayers,
petitioners122 aver that the implementation of EDCA would
result in the unlawful use of public funds. They emphasize that
Article X(1) refers to an appropriation of funds; and that the
agreement entails a waiver of the payment of taxes, fees, and
rentals. During the oral arguments, however, they admitted
that the government had not yet appropriated or actually
disbursed public funds for the purpose of implementing the
agreement.123 The OSG, on the other hand, maintains that
petitioners cannot sue as taxpayers.124Respondent explains
that EDCA is neither meant to be a tax measure, nor is it
directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act
complained of directly involves the illegal disbursement of
public funds derived from taxation.125 Here, those challenging
the act must specifically show that they have sufficient interest
in preventing the illegal expenditure of public money, and
that they will sustain a direct injury as a result of the
enforcement of the assailed act.126 Applying that principle to
this case, they must establish that EDCA involves the
exercise by Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as
taxpayers' suits. We emphasize that a taxpayers' suit
contemplates a situation in which there is already an
appropriation or a disbursement of public funds.128 A reading
of Article X(l) of EDCA would show that there has been neither
an appropriation nor an authorization of disbursement of
funds. The cited provision reads:
All obligations under this Agreement are subject to the
availability of appropriated funds authorized for these
purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would
require the disbursement of public funds, the money must
come from appropriated funds that are
specifically authorized for this purpose. Under the agreement,
before there can even be a disbursement of public funds,
there must first be a legislative action. Until and unless the
Legislature appropriates funds for EDCA, or unless petitioners
can pinpoint a specific item in the current budget that allows
expenditure under the agreement, we cannot at this time rule
that there is in fact an appropriation or a disbursement of funds
that would justify the filing of a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners
who are party-list representatives have the standing to
challenge the act of the Executive Department, especially if it
impairs the constitutional prerogatives, powers, and privileges
of their office. While they admit that there is no incumbent
Senator who has taken part in the present petition, they
nonetheless assert that they also stand to sustain a derivative
but substantial injury as legislators. They argue that under the
Constitution, legislative power is vested in both the Senate and
the House of Representatives; consequently, it is the entire
Legislative Department that has a voice in determining
whether or not the presence of foreign military should be
allowed. They maintain that as members of the Legislature,
they have the requisite personality to bring a suit, especially
when a constitutional issue is raised.
The OSG counters130 that petitioners do not have any legal
standing to file the suits concerning the lack of Senate
concurrence in EDCA. Respondent emphasizes that the power
to concur in treaties and international agreements is an
"institutional prerogative" granted by the Constitution to the
Senate. Accordingly, the OSG argues that in case of an
allegation of impairment of that power, the injured party
would be the Senate as an institution or any of its incumbent
members, as it is the Senate's constitutional function that is
allegedly being violated.
The legal standing of an institution of the Legislature or of any
of its Members has already been recognized by this Court in a
number of cases.131 What is in question here is the alleged
impairment of the constitutional duties and powers granted to,
or the impermissible intrusion upon the domain of, the
Legislature or an institution thereof.132 In the case of suits
initiated by the legislators themselves, this Court has
recognized their standing to question the validity of any
official action that they claim infringes the prerogatives,
powers, and privileges vested by the Constitution in their
office.133 As aptly explained by Justice Perfecto in Mabanag v.
Lopez Vito:134
Being members of Congress, they are even duty bound to see
that the latter act within the bounds of the
Constitution which, as representatives of the people, they
should uphold, unless they are to commit a flagrant betrayal
of public trust. They are representatives of the sovereign
people and it is their sacred duty to see to it that the
fundamental law embodying the will of the sovereign people
is not trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of
Congress who are challenging the official act have standing
only to the extent that the alleged violation impinges on their
right to participate in the exercise of the powers of the
institution of which they are members.135 Legislators have the
standing "to maintain inviolate the prerogatives, powers, and
privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action,
which they claim infringes their prerogatives as
legislators."136 As legislators, they must clearly show that there
was a direct injury to their persons or the institution to which
they belong.137
As correctly argued by respondent, the power to concur in a
treaty or an international agreement is an institutional
prerogative granted by the Constitution to the Senate, not to
the entire Legislature. In Pimentel v. Office of the Executive
Secretary, this Court did not recognize the standing of one of
the petitioners therein who was a member of the House of
Representatives. The petition in that case sought to compel
the transmission to the Senate for concurrence of the signed
text of the Statute of the International Criminal Court. Since
that petition invoked the power of the Senate to grant or
withhold its concurrence in a treaty entered into by the
Executive Department, only then incumbent Senator Pimentel
was allowed to assert that authority of the Senate of which he
was a member.
Therefore, none of the initial petitioners in the present
controversy has the standing to maintain the suits as
legislators.
Nevertheless, this Court finds that there is basis for it to review
the act of the Executive for the following reasons.
In any case, petitioners raise issues involving matters of
transcendental importance.
Petitioners138 argue that the Court may set aside procedural
technicalities, as the present petition tackles issues that are of
transcendental importance. They point out that the matter
before us is about the proper exercise of the Executive
Department's power to enter into international agreements in
relation to that of the Senate to concur in those agreements.
They also assert that EDCA would cause grave injustice, as well
as irreparable violation of the Constitution and of the Filipino
people's rights.
The OSG, on the other hand, insists139 that petitioners cannot
raise the mere fact that the present petitions involve matters of
transcendental importance in order to cure their inability to
comply with the constitutional requirement of standing.
Respondent bewails the overuse of "transcendental
importance" as an exception to the traditional requirements of
constitutional litigation. It stresses that one of the purposes of
these requirements is to protect the Supreme Court from
unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal
stance towards the requirement of legal standing, especially
when paramount interest is involved. Indeed, when those who
challenge the official act are able to craft an issue of
transcendental significance to the people, the Court may
exercise its sound discretion and take cognizance of the suit. It
may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a
law or any other government act.
While this Court has yet to thoroughly delineate the outer limits
of this doctrine, we emphasize that not every other case,
however strong public interest may be, can qualify as an issue
of transcendental importance. Before it can be impelled to
brush aside the essential requisites for exercising its power of
judicial review, it must at the very least consider a number of
factors: (1) the character of the funds or other assets involved
in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack
of any other party that has a more direct and specific interest
in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties,
together with the oral arguments, shows that petitioners have
presented serious constitutional issues that provide ample
justification for the Court to set aside the rule on standing. The
transcendental importance of the issues presented here is
rooted in the Constitution itself. Section 25, Article XVIII thereof,
cannot be any clearer: there is a much stricter mechanism
required before foreign military troops, facilities, or bases may
be allowed in the country. The DFA has already confirmed to
the U.S. Embassy that "all internal requirements of the
Philippines x x x have already been complied with."142 It
behooves the Court in this instance to take a liberal stance
towards the rule on standing and to determine forthwith
whether there was grave abuse of discretion on the part of
the Executive Department.
We therefore rule that this case is a proper subject for
judicial review.
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or
facilities
 C. Whether the provisions under EDCA are consistent
with the Constitution, as well as with existing laws and
treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes
the duty to defend the State, for which purpose he may use
that power in the conduct of foreign relations
Historically, the Philippines has mirrored the division of powers
in the U.S. government. When the Philippine government was
still an agency of the Congress of the U.S., it was as an agent
entrusted with powers categorized as executive, legislative,
and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided
powers cannot be exercised except by the department given
the power.144
This divide continued throughout the different versions of the
Philippine Constitution and specifically vested the supreme
executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the
Philippines when the country attained independence. One of
the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied
by the oath of office.146 The oath of the President prescribed
by the 1987 Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-President
or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me
God. (In case of affirmation, last sentence will be
omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an
obligation imposed on the President, and not a separate grant
of power.148 Section 1 7, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the
provision regarding the President's power of control over the
executive department, viz:
The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
The equivalent provisions in the next preceding Constitution
did not explicitly require this oath from the President. In the
1973 Constitution, for instance, the provision simply gives the
President control over the ministries.149 A similar language, not
in the form of the President's oath, was present in the 1935
Constitution, particularly in the enumeration of executive
functions.150 By 1987, executive power was codified not only in
the Constitution, but also in the Administrative Code:151
SECTION 1.Power of Control. - The President shall have control
of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed. (Emphasis
supplied)
Hence, the duty to faithfully execute the laws of the land is
inherent in executive power and is intimately related to the
other executive functions. These functions include the faithful
execution of the law in autonomous regions;152 the right to
prosecute crimes;153 the implementation of transportation
projects;154 the duty to ensure compliance with treaties,
executive agreements and executive orders;155 the authority
to deport undesirable aliens;156 the conferment of national
awards under the President's jurisdiction;157 and the overall
administration and control of the executive department.158
These obligations are as broad as they sound, for a President
cannot function with crippled hands, but must be capable of
securing the rule of law within all territories of the Philippine
Islands and be empowered to do so within constitutional limits.
Congress cannot, for instance, limit or take over the President's
power to adopt implementing rules and regulations for a law it
has enacted.159
More important, this mandate is self-executory by virtue of its
being inherently executive in nature.160 As Justice Antonio T.
Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or
execution of self-executory constitutional powers vested in the
President, the rule-making power of the President is not a
delegated legislative power. The most important self-
executory constitutional power of the President is the
President's constitutional duty and mandate to "ensure that
the laws be faithfully executed." The rule is that the President
can execute the law without any delegation of power from
the legislature.
The import of this characteristic is that the manner of the
President's execution of the law, even if not expressly granted
by the law, is justified by necessity and limited only by law,
since the President must "take necessary and proper steps to
carry into execution the law."162 Justice George Malcolm
states this principle in a grand manner:163
The executive should be clothed with sufficient power to
administer efficiently the affairs of state. He should have
complete control of the instrumentalities through whom his
responsibility is discharged. It is still true, as said by Hamilton,
that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a
bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The
mistakes of State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The
Congress of the United States clearly intended that the
Governor-General's power should be commensurate with his
responsibility. The Congress never intended that the Governor-
General should be saddled with the responsibility of
administering the government and of executing the laws but
shorn of the power to do so. The interests of the Philippines will
be best served by strict adherence to the basic principles of
constitutional government.
In light of this constitutional duty, it is the President's
prerogative to do whatever is legal and necessary for
Philippine defense interests. It is no coincidence that the
constitutional provision on the faithful execution clause was
followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary
events of lawless violence, invasion, or rebellion. And this duty
of defending the country is unceasing, even in times when
there is no state of lawlesss violence, invasion, or rebellion. At
such times, the President has full powers to ensure the faithful
execution of the laws.
It would therefore be remiss for the President and repugnant to
the faithful-execution clause of the Constitution to do nothing
when the call of the moment requires increasing the military's
defensive capabilities, which could include forging alliances
with states that hold a common interest with the Philippines or
bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by
Justice Arturo D. Brion's Dissenting Opinion as the beginning of
a "patent misconception."165 His dissent argues that this
approach taken in analyzing the President's role as executor
of the laws is preceded by the duty to preserve and defend
the Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly
failed to appreciate the nuances of the analysis, if read
holistically and in context. The concept that the President
cannot function with crippled hands and therefore can
disregard the need for Senate concurrence in treaties167 was
never expressed or implied. Rather, the appropriate reading of
the preceding analysis shows that the point being elucidated
is the reality that the President's duty to execute the laws and
protect the Philippines is inextricably interwoven with his
foreign affairs powers, such that he must resolve issues imbued
with both concerns to the full extent of his powers, subject only
to the limits supplied by law. In other words, apart from an
expressly mandated limit, or an implied limit by virtue of
incompatibility, the manner of execution by the President must
be given utmost deference. This approach is not different from
that taken by the Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the
President authority to bypass constitutional safeguards and
limits. In fact, it specifies what these limitations are, how these
limitations are triggered, how these limitations function, and
what can be done within the sphere of constitutional duties
and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis
proffered when it claims that the foreign relations power of the
President should not be interpreted in isolation.168 The analysis
itself demonstrates how the foreign affairs function, while
mostly the President's, is shared in several instances, namely in
Section 2 of Article II on the conduct of war; Sections 20 and
21 of Article VII on foreign loans, treaties, and international
agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article
XVIII on treaties and international agreements entered into
prior to the Constitution and on the presence of foreign
military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the
relationship between the two major presidential functions and
the role of the Senate in it.
This approach of giving utmost deference to presidential
initiatives in respect of foreign affairs is not novel to the Court.
The President's act of treating EDCA as an executive
agreement is not the principal power being analyzed as the
Dissenting Opinion seems to suggest. Rather, the preliminary
analysis is in reference to the expansive power of foreign
affairs. We have long treated this power as something the
Courts must not unduly restrict. As we stated recently in Vinuya
v. Romulo:
To be sure, not all cases implicating foreign relations present
political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government
should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to
the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the
best interest of the country to waive all claims of its nationals
for reparations against Japan in the Treaty of Peace of 1951.
The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination
by the Executive Department via the instant petition for
certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US
Supreme Court held that "[t]he President is the sole organ of
the nation in its external relations, and its sole representative
with foreign relations."
It is quite apparent that if, in the maintenance
of our international relations, embarrassment -
perhaps serious embarrassment - is to be
avoided and success for our aims achieved,
congressional legislation which is to be made
effective through negotiation and inquiry
within the international field must often
accord to the President a degree of discretion
and freedom from statutory restriction which
would not be admissible where domestic
affairs alone involved. Moreover, he, not
Congress, has the better opportunity of
knowing the conditions which prevail in
foreign countries, and especially is this true in
time of war. He has his confidential sources of
information. He has his agents in the form of
diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence
through Bavan v. Executive Secretary and Pimentel v.
Executive Secretary; its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Puno's dissent in
Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of
complexities and consequences, sometimes
with life and death significance to the nation
especially in times of war. It can only be
entrusted to that department of government
which can act on the basis of the best
available information and can decide with
decisiveness .... It is also the President who
possesses the most comprehensive and the
most confidential information about foreign
countries for our diplomatic and consular
officials regularly brief him on meaningful
events all over the world. He has also
unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role
in foreign affairs is dominant and the President
is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are
adjudged under less stringent standards, lest
their judicial repudiation lead to breach of an
international obligation, rupture of state
relations, forfeiture of confidence, national
embarrassment and a plethora of other
problems with equally undesirable
consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the
same perspective and understanding, knowing full well the
constitutional and legal repercussions of any judicial
overreach.
2. The plain meaning of the Constitution prohibits the entry of
foreign military bases, troops or facilities, except by way of a
treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole
authority in foreign relations.
Despite the President's roles as defender of the State and sole
authority in foreign relations, the 1987 Constitution expressly
limits his ability in instances when it involves the entry of foreign
military bases, troops or facilities. The initial limitation is found in
Section 21 of the provisions on the Executive Department: "No
treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of
the Senate." The specific limitation is given by Section 25 of the
Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for
that purpose, and recognized as a treaty by the other
contracting State.
It is quite plain that the Transitory Provisions of the 1987
Constitution intended to add to the basic requirements of a
treaty under Section 21 of Article VII. This means that both
provisions must be read as additional limitations to the
President's overarching executive function in matters of
defense and foreign relations.
3. The President, however, may enter into an executive
agreement on foreign military bases, troops, or facilities, if (a) it
is not the instrument that allows the presence of foreign military
bases, troops, or facilities; or (b) it merely aims to implement
an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty
by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be
in the form of a "treaty" duly concurred in by the Senate. They
stress that the Constitution is unambigous in mandating the
transmission to the Senate of all international agreements
concluded after the expiration of the MBA in 1991 -
agreements that concern the presence of foreign military
bases, troops, or facilities in the country. Accordingly,
petitioners maintain that the Executive Department is not
given the choice to conclude agreements like EDCA in the
form of an executive agreement.
This is also the view of the Senate, which, through a majority
vote of 15 of its members - with 1 against and 2 abstaining -
says in SR 105171 that EDCA must be submitted to the Senate in
the form of a treaty for concurrence by at least two-thirds of
all its members.
The Senate cites two constitutional provisions (Article VI,
Section 21 and Article XVIII, Section 25) to support its position.
Compared with the lone constitutional provision that the
Office of the Solicitor General (OSG) cites, which is Article XVIII,
Section 4(2), which includes the constitutionality of "executive
agreement(s)" among the cases subject to the Supreme
Court's power of judicial review, the Constitution clearly
requires submission of EDCA to the Senate. Two specific
provisions versus one general provision means that the specific
provisions prevail. The term "executive agreement" is "a term
wandering alone in the Constitution, bereft of provenance
and an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon
interpellation even added that the MDT, which the Executive
claims to be partly implemented through EDCA, is already
obsolete.
There are two insurmountable obstacles to this Court's
agreement with SR 105, as well as with the comment on
interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-
entrenched in this Court's pronouncements on the powers of
the President. When the Court validated the concept of
"executive agreement," it did so with full knowledge of the
Senate's role in concurring in treaties. It was aware of the
problematique of distinguishing when an international
agreement needed Senate concurrence for validity, and
when it did not; and the Court continued to validate the
existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions
upholding the power of the President to enter into an
executive agreement.173
Second, the MDT has not been rendered obsolescent,
considering that as late as 2009,174 this Court continued to
recognize its validity.
Third, to this Court, a plain textual reading of Article XIII,
Section 25, inevitably leads to the conclusion that it applies
only to a proposed agreement between our government and
a foreign government, whereby military bases, troops, or
facilities of such foreign government would be "allowed" or
would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative
injunction. This wording signifies that the President is not
authorized by law to allow foreign military bases, troops, or
facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally
restricted authority pertains to the entry of the bases, troops, or
facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of
paramount consideration is the plain meaning of the
language expressed in the Constitution, or the verba
legis rule.175 It is presumed that the provisions have been
carefully crafted in order to express the objective it seeks to
attain.176 It is incumbent upon the Court to refrain from going
beyond the plain meaning of the words used in the
Constitution. It is presumed that the framers and the people
meant what they said when they said it, and that this
understanding was reflected in the Constitution and
understood by the people in the way it was meant to be
understood when the fundamental law was ordained and
promulgated.177 As this Court has often said:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it
being essential for the rule of law to obtain that it should ever
be present in the people's consciousness, its language as
much as possible should be understood in the sense they have
in common use. What it says according to the text of the
provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus, these
are the cases where the need for construction is reduced to a
minimum.178(Emphases supplied)
It is only in those instances in which the constitutional provision
is unclear, ambiguous, or silent that further construction must
be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v.
Commission on Elections,180 we reiterated this guiding
principle:
it [is] safer to construe the Constitution from what appears
upon its face. The proper interpretation therefore depends
more on how it was understood by the people adopting it than
in the framers' understanding thereof. (Emphases supplied)
The effect of this statement is surprisingly profound, for, if taken
literally, the phrase "shall not be allowed in the Philippines"
plainly refers to the entry of bases, troops, or facilities in the
country. The Oxford English Dictionary defines the word "allow"
as a transitive verb that means "to permit, enable"; "to give
consent to the occurrence of or relax restraint on (an action,
event, or activity)"; "to consent to the presence or attendance
of (a person)"; and, when with an adverbial of place, "to
permit (a person or animal) to go, come, or be in, out, near,
etc."181 Black's Law Dictionary defines the term as one that
means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a
preposition used to indicate "place or position in space or
anything having material extension: Within the limits or bounds
of, within (any place or thing)."183 That something is the
Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to the
initial entry of the foreign military bases, troops, or facilities.
Once entry is authorized, the subsequent acts are thereafter
subject only to the limitations provided by the rest of the
Constitution and Philippine law, and not to the Section 25
requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the
Philippines. This Court stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the
ambiguity surrounding the meaning of the word "activities"
arose from accident. In our view, it was deliberately made
that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and
humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that "Balikatan
02-1," a "mutual anti- terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to
combat itself-such as the one subject of the instant petition,
are indeed authorized.184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues
to govern the conduct of foreign military troops in the
Philippines,185 readily implying the legality of their initial entry
into the country.
The OSG emphasizes that EDCA can be in the form of an
executive agreement, since it merely involves "adjustments in
detail" in the implementation of the MDT and the VFA.186 It
points out that there are existing treaties between the
Philippines and the U.S. that have already been concurred in
by the Philippine Senate and have thereby met the
requirements of the Constitution under Section 25. Because of
the status of these prior agreements, respondent emphasizes
that EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees
with the ponencia's application of verba legis construction to
the words of Article XVIII, Section 25.187 It claims that the
provision is "neither plain, nor that simple."188 To buttress its
disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the
circumstances that led to the historical event, and the
meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique
of verba legis is not inapplicable just because a provision has
a specific historical context. In fact, every provision of the
Constitution has a specific historical context. The purpose of
constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular
provision functions. Verba legis is of paramount consideration,
but it is not the only consideration. As this Court has often said:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them prevails. As
the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much
as possible should be understood in the sense they have in
common use. What it says according to the text of the
provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus, these
are the cases where the need for construction is reduced to a
minimum.190(Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning
of terms. In this case, the phrase being construed is "shall not
be allowed in the Philippines" and not the preceding one
referring to "the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases,
troops, or facilities." It is explicit in the wording of the provision
itself that any interpretation goes beyond the text itself and
into the discussion of the framers, the context of the
Constitutional Commission's time of drafting, and the history of
the 1947 MBA. Without reference to these factors, a reader
would not understand those terms. However, for the phrase
"shall not be allowed in the Philippines," there is no need for
such reference. The law is clear. No less than the Senate
understood this when it ratified the VFA.
4. The President may generally enter into executive
agreements subject to limitations defined by the Constitution
and may be in furtherance of a treaty already concurred in by
the Senate.
We discuss in this section why the President can enter into
executive agreements.
It would be helpful to put into context the contested language
found in Article XVIII, Section 25. Its more exacting requirement
was introduced because of the previous experience of the
country when its representatives felt compelled to consent to
the old MBA.191 They felt constrained to agree to the MBA in
fulfilment of one of the major conditions for the country to gain
independence from the U.S.192 As a result of that experience,
a second layer of consent for agreements that allow military
bases, troops and facilities in the country is now articulated in
Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted
in such a way that we completely ignore the intent of our
constitutional framers when they provided for that additional
layer, nor the vigorous statements of this Court that affirm the
continued existence of that class of international agreements
called "executive agreements."
The power of the President to enter into binding executive
agreements without Senate concurrence is already well-
established in this jurisdiction.193 That power has been alluded
to in our present and past Constitutions,194 in various
statutes,195 in Supreme Court decisions,196 and during the
deliberations of the Constitutional Commission.197 They cover a
wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of
foreign military forces in the country.199
As the sole organ of our foreign relations200 and the
constitutionally assigned chief architect of our foreign
policy,201the President is vested with the exclusive power to
conduct and manage the country's interface with other states
and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters into
international agreements; promotes trade, investments,
tourism and other economic relations; and settles international
disputes with other states.202
As previously discussed, this constitutional mandate emanates
from the inherent power of the President to enter into
agreements with other states, including the prerogative to
conclude binding executive agreements that do not require
further Senate concurrence. The existence of this presidential
power203 is so well-entrenched that Section 5(2)(a), Article VIII
of the Constitution, even provides for a check on its exercise.
As expressed below, executive agreements are among those
official governmental acts that can be the subject of this
Court's power of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executiv
e agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive
agreements are defined as "international agreements
embodying adjustments of detail carrying out well-established
national policies and traditions and those involving
arrangements of a more or less temporary nature." 204 In Bayan
Muna v. Romulo, this Court further clarified that executive
agreements can cover a wide array of subjects that have
various scopes and purposes.205 They are no longer limited to
the traditional subjects that are usually covered by executive
agreements as identified in Eastern Sea Trading. The Court
thoroughly discussed this matter in the following manner:
The categorization of subject matters that may be covered by
international agreementsmentioned in Eastern Sea
Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed since the
Court rendered its decision in Eastern Sea Trading. Since then,
the conduct of foreign affairs has become more complex and
the domain of international law wider, as to include such
subjects as human rights, the environment, and the sea. In
fact, in the US alone, the executive agreements executed by
its President from 1980 to 2000 covered subjects such
as defense, trade, scientific cooperation, aviation, atomic
energy, environmental cooperation, peace corps, arms
limitation, and nuclear safety, among others. Surely,
the enumeration in Eastern Sea Trading cannot circumscribe
the option of each state on the matter of which
the international agreement format would be convenient to
serve its best interest. As Francis Sayre said in his work referred
to earlier:
. . . It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time
to time. Hundreds of executive agreements, other than those
entered into under the trade-agreement act, have been
negotiated with foreign governments. . . . They cover such
subjects as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil air craft, custom
matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and
copyrights, etc .... (Emphases Supplied)
One of the distinguishing features of executive agreements is
that their validity and effectivity are not affected by a lack of
Senate concurrence.206 This distinctive feature was recognized
as early as in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with
the approval of two-thirds of the Senate. Executive
agreements become binding through executive action
without the need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered
into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of
claims. The validity of these has never been seriously
questioned by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In
fact, the framers specifically deliberated on whether the
general term "international agreement" included executive
agreements, and whether it was necessary to include an
express proviso that would exclude executive agreements
from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling
in Eastern Sea Trading, the Constitutional Commission
members ultimately decided that the term "international
agreements" as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no
longer needed. Their discussion is reproduced below:207
MS. AQUINO: Madam President, first I would like a clarification
from the Committee. We have retained the words
"international agreement" which I think is the correct judgment
on the matter because an international agreement is different
from a treaty. A treaty is a contract between parties which is in
the nature of international agreement and also a municipal
law in the sense that the people are bound. So there is a
conceptual difference. However, I would like to be clarified if
the international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties
to these international negotiations stipulate the conditions
which are necessary for the agreement or whatever it may be
to become valid or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that
depend on the nature of the executive agreement?
According to common usage, there are two types of
executive agreement: one is purely proceeding from an
executive act which affects external relations independent of
the legislative and the other is an executive act in pursuance
of legislative authorization. The first kind might take the form of
just conventions or exchanges of notes or protocol while the
other, which would be pursuant to the legislative authorization,
may be in the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally
made to implement a treaty already enforced or to determine
the details for the implementation of the treaty. We are
speaking of executive agreements, not international
agreements.
MS. AQUINO: I am in full agreement with that, except that it
does not cover the first kind of executive agreement which is
just protocol or an exchange of notes and this would be in the
nature of reinforcement of claims of a citizen against a
country, for example.
MR. CONCEPCION: The Commissioner is free to require
ratification for validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we
should provide, unless the Committee explains to us otherwise,
an explicit proviso which would except executive
agreements from the requirement of concurrence of two-thirds
of the Members of the Senate. Unless I am enlightened by the
Committee I propose that tentatively, the sentence should
read. "No treaty or international agreement EXCEPT EXECUTIVE
AGREEMENTS shall be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court
decision [in Eastern Sea Trading] might help clarify this:
The right of the executive to enter into binding agreements
without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest
days of our history, we have entered into executive
agreements covering such subjects as commercial and
consular relations, most favored nation rights, patent rights,
trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of this
has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks
have been concluded by the executive of various countries
under the Act of Congress of March 3, 1881 (21 Stat. 502) . .
. International agreements involving political issues or changes
of national policy and those involving international
agreements of a permanent character usually take the form
of treaties. But international agreements
embodying adjustments of detail, carrying out well established
national policies and traditions and those
involving arrangements of a more or less temporary
nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the
executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say
international agreements which need concurrence by at least
two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements
which are executive agreements essentially but which are
proceeding from the authorization of Congress. If that is our
understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then
it does not need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on
the definition of "executive agreements" and that would make
unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of
"executive agreements" because I heard that these executive
agreements must rely on treaties. In other words, there must
first be treaties.
MR. CONCEPCION: No, I was speaking about the common
use, as executive agreements being the implementation of
treaties, details of which do not affect the sovereignty of the
State.
MR. GUINGONA: But what about the matter of permanence,
Madam President? Would 99 years be considered
permanent? What would be the measure of permanency? I
do not conceive of a treaty that is going to be forever, so
there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is
whether this type of agreement should be included in a
provision of the Constitution requiring the concurrence of
Congress.
MR. GUINGONA: It depends on the concept of the executive
agreement of which I am not clear. If the executive
agreement partakes of the nature of a treaty, then it should
also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of
a treaty, it is within the power of the Constitutional Commission
to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether
the words "international agreements" would include executive
agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one
question. Do we take it, therefore, that as far as the
Committee is concerned, the term "international agreements"
does not include the term "executive agreements" as read by
the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the
requirements under Section 21 was again recognized in Bayan
v. Zamora and in Bayan Muna v. Romulo. These cases, both
decided under the aegis of the present Constitution,
quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the
concurrence of the Senate.
Executive agreements may dispense with the requirement of
Senate concurrence because of the legal mandate with
which they are concluded. As culled from the afore-quoted
deliberations of the Constitutional Commission, past Supreme
Court Decisions, and works of noted scholars,208 executive
agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements.
They are concluded (1) to adjust the details of a treaty;209 (2)
pursuant to or upon confirmation by an act of the
Legislature;210 or (3) in the exercise of the President's
independent powers under the Constitution.211 The raison
d'etre of executive agreements hinges on prior constitutional
or legislative authorizations.
The special nature of an executive agreement is not just a
domestic variation in international agreements. International
practice has accepted the use of various forms and
designations of international agreements, ranging from the
traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem,
simplified forms that no longer necessitate ratification.212 An
international agreement may take different forms: treaty, act,
protocol, agreement, concordat, compromis
d'arbitrage, convention, covenant, declaration, exchange of
notes, statute, pact, charter, agreed minute, memorandum of
agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction
between a treaty and an international agreement or even an
executive agreement is irrelevant for purposes of determining
international rights and obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international
agreements, and executive agreements is relegated to a
mere variation in form, or that the constitutional requirement
of Senate concurrence is demoted to an optional
constitutional directive. There remain two very important
features that distinguish treaties from executive
agreements and translate them into terms of art in the
domestic setting.
First, executive agreements must remain traceable to an
express or implied authorization under the Constitution,
statutes, or treaties. The absence of these precedents puts the
validity and effectivity of executive agreements under serious
question for the main function of the Executive is to enforce
the Constitution and the laws enacted by the Legislature, not
to defeat or interfere in the performance of these rules.214 In
turn, executive agreements cannot create new international
obligations that are not expressly allowed or reasonably
implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior
to executive agreements. Treaties are products of the acts of
the Executive and the Senate215 unlike executive agreements,
which are solely executive actions.216Because of legislative
participation through the Senate, a treaty is regarded as
being on the same level as a statute.217 If there is an
irreconcilable conflict, a later law or treaty takes precedence
over one that is prior.218 An executive agreement is treated
differently. Executive agreements that are inconsistent with
either a law or a treaty are considered ineffective.219 Both
types of international agreement are nevertheless subject to
the supremacy of the Constitution.220
This rule does not imply, though, that the President is
given carte blanche to exercise this discretion. Although the
Chief Executive wields the exclusive authority to conduct our
foreign relations, this power must still be exercised within the
context and the parameters set by the Constitution, as well as
by existing domestic and international laws. There are
constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as
those that involve the following:
a. The policy of freedom from nuclear weapons within
Philippine territory221
b. The fixing of tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
imposts, which must be pursuant to the authority
granted by Congress222
 c. The grant of any tax exemption, which must be
pursuant to a law concurred in by a majority of all the
Members of Congress223
d. The contracting or guaranteeing, on behalf of the
Philippines, of foreign loans that must be previously
concurred in by the Monetary Board224
e. The authorization of the presence of foreign military
bases, troops, or facilities in the country must be in the
form of a treaty duly concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5,
the concurrence of the Senate is required, should the
form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of
an executive agreement or a treaty.
No court can tell the President to desist from choosing an
executive agreement over a treaty to embody an
international agreement, unless the case falls squarely within
Article VIII, Section 25.
As can be gleaned from the debates among the members of
the Constitutional Commission, they were aware that legally
binding international agreements were being entered into by
countries in forms other than a treaty. At the same time, it is
clear that they were also keen to preserve the concept of
"executive agreements" and the right of the President to enter
into such agreements.
What we can glean from the discussions of the Constitutional
Commissioners is that they understood the following realities:
1. Treaties, international agreements, and executive
agreements are all constitutional manifestations of the
conduct of foreign affairs with their distinct legal
characteristics.
a. Treaties are formal contracts between the
Philippines and other States-parties, which are
in the nature of international agreements,
and also of municipal laws in the sense of their
binding nature.226
b. International agreements are similar
instruments, the provisions of which may
require the ratification of a designated
number of parties thereto. These agreements
involving political issues or changes in national
policy, as well as those involving international
agreements of a permanent character,
usually take the form of treaties. They may
also include commercial agreements, which
are executive agreements essentially, but
which proceed from previous authorization by
Congress, thus dispensing with the
requirement of concurrence by the Senate.227
c. Executive agreements are generally
intended to implement a treaty already
enforced or to determine the details of the
implementation thereof that do not affect the
sovereignty of the State.228
2. Treaties and international agreements that cannot
be mere executive agreements must, by
constitutional decree, be concurred in by at least
two-thirds of the Senate.
3. However, an agreement - the subject of which is
the entry of foreign military troops, bases, or facilities -
is particularly restricted. The requirements are that it
be in the form of a treaty concurred in by the Senate;
that when Congress so requires, it be ratified by a
majority of the votes cast by the people in a national
referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as
a species of international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted
within the scope of her constitutional authority and discretion
when she chose to enter into the RP-U.S. Non-Surrender
Agreement in the form of an executive agreement, instead of
a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic
presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious
validity, partaking as it does of the nature of a treaty; hence, it
must be duly concurred in by the Senate. x x x x. Pressing its
point, petitioner submits that the subject of the Agreement
does not fall under any of the subject-categories that xx x may
be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is
not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international
relations. The primary consideration in the choice of the form
of agreement is the parties' intent and desire to craft an
international agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes a back
seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under
the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact
that - save for the situation and matters contemplated in Sec.
25, Art. XVIII of the Constitution - when a treaty is required, the
Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined
therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would
put it, "executive altogether." The right of the President to enter
into or ratify binding executive agreements has been
confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-
03, then President Gloria Macapagal-Arroyo, represented by
the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At
the end of the day, the President - by ratifying, thru her
deputies, the non-surrender agreement - did nothing more
than discharge a constitutional duty and exercise a
prerogative that pertains to her office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be
given a larger measure of authority and wider discretion,
subject only to the least amount of checks and restrictions
under the Constitution.229 The rationale behind this power and
discretion was recognized by the Court in Vinuya v. Executive
Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the
Negotiation of International Agreements and its Ratification,
thus, correctly reflected the inherent powers of the President
when it stated that the DFA "shall determine whether an
agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the
Court does not look into whether an international agreement
should be in the form of a treaty or an executive agreement,
save in cases in which the Constitution or a statute requires
otherwise. Rather, in view of the vast constitutional powers and
prerogatives granted to the President in the field of foreign
affairs, the task of the Court is to determine whether the
international agreement is consistent with the applicable
limitations.
6. Executive agreements may cover the matter of foreign
military forces if it merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting
the details of a law or a treaty that already deals with the
presence of foreign military forces is not at all unusual in this
jurisdiction. In fact, the Court has already implicitly
acknowledged this practice in Lim v. Executive Secretary.231 In
that case, the Court was asked to scrutinize the
constitutionality of the Terms of Reference of the Balikatan 02-
1 joint military exercises, which sought to implement the VFA.
Concluded in the form of an executive agreement, the Terms
of Reference detailed the coverage of the term "activities"
mentioned in the treaty and settled the matters pertaining to
the construction of temporary structures for the U.S. troops
during the activities; the duration and location of the
exercises; the number of participants; and the extent of and
limitations on the activities of the U.S. forces. The Court upheld
the Terms of Reference as being consistent with the VFA. It no
longer took issue with the fact that the Balikatan Terms of
Reference was not in the form of a treaty concurred in by the
Senate, even if it dealt with the regulation of the activities of
foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the
use of an executive agreement in an attempt to adjust the
details of a provision of the VFA. The Philippines and the U.S.
entered into the Romulo-Kenney Agreement, which undertook
to clarify the detention of a U.S. Armed Forces member, whose
case was pending appeal after his conviction by a trial court
for the crime of rape. In testing the validity of the latter
agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond
the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not
in accord" with the VFA, since the former was squarely
inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the
Court ordered the Secretary of Foreign Affairs to comply with
the VFA and "forthwith negotiate with the United States
representatives for the appropriate agreement on detention
facilities under Philippine authorities as provided in Art. V, Sec.
10 of the VFA. "233
and must not unduly expand the international
obligation expressly mentioned or necessarily implied
in the law or treaty.
4. The executive agreement must be consistent with
the Constitution, as well as with existing laws and
treaties.
In light of the President's choice to enter into EDCA in the form
of an executive agreement, respondents carry the burden of
proving that it is a mere implementation of existing laws and
treaties concurred in by the Senate. EDCA must thus be
carefully dissected to ascertain if it remains within the legal
parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and
framework of the MDT and the VFA
The starting point of our analysis is the rule that "an executive
agreement xx x may not be used to amend a treaty." 234 In Lim
v. Executive Secretary and in Nicolas v. Romulo, the Court
approached the question of the validity of executive
agreements by comparing them with the general framework
and the specific provisions of the treaties they seek to
implement.
In Lim, the Terms of Reference of the joint military exercises was
scrutinized by studying "the framework of the treaty
antecedents to which the Philippines bound itself," 235 i.e., the
MDT and the VFA. The Court proceeded to examine the
extent of the term "activities" as contemplated in Articles
1236 and II237 of the VFA. It later on found that the term
"activities" was deliberately left undefined and ambiguous in
order to permit "a wide scope of undertakings subject only to
the approval of the Philippine government"238 and thereby
allow the parties "a certain leeway in negotiation."239 The Court
eventually ruled that the Terms of Reference fell within the
sanctioned or allowable activities, especially in the context of
the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It
studied the provisions of the VFA on custody and detention to
ascertain the validity of the Romulo-Kenney Agreement.240 It
eventually found that the two international agreements were
not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the
U.S. Embassy Compound and guarded by U.S. military
personnel, instead of by Philippine authorities. According to
the Court, the parties "recognized the difference between
custody during the trial and detention after
conviction."241 Pursuant to Article V(6) of the VFA, the custody
of a U.S. military personnel resides with U.S. military authorities
during trial. Once there is a finding of guilt, Article V(l0) requires
that the confinement or detention be "by Philippine
authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that

Culling from the foregoing discussions, we reiterate the
EDCA "substantially modifies or amends the VFA" 242and follows
following pronouncements to guide us in resolving the present
with an enumeration of the differences between EDCA and
controversy:
the VFA. While these arguments will be rebutted more fully
further on, an initial answer can already be given to each of
1. Section 25, Article XVIII of the Constitution, contains the concerns raised by his dissent.
stringent requirements that must be fulfilled by the
international agreement allowing the presence of
The first difference emphasized is that EDCA does not only
foreign military bases, troops, or facilities in the
regulate visits as the VFA does, but allows temporary stationing
Philippines: (a) the agreement must be in the form of
on a rotational basis of U.S. military personnel and their
a treaty, and (b) it must be duly concurred in by the
contractors in physical locations with permanent facilities and
Senate.
pre-positioned military materiel.

2. If the agreement is not covered by the above

This argument does not take into account that these
situation, then the President may choose the form of
permanent facilities, while built by U.S. forces, are to be owned
the agreement (i.e., either an executive agreement or
by the Philippines once constructed.243 Even the VFA allowed
a treaty), provided that the agreement dealing with
construction for the benefit of U.S. forces during their
foreign military bases, troops, or facilities is not the
temporary visits.
principal agreement that first allows their entry or
presence in the Philippines.
The second difference stated by the dissent is that EDCA
allows the prepositioning of military materiel, which can
3. The executive agreement must not go beyond the
include various types of warships, fighter planes, bombers, and
parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement;
vessels, as well as land and amphibious vehicles and their
corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment,
vehicles, vessels, and aircraft to be brought into the country.
Articles VII and VIII of the VFA contemplates that U.S.
equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of
the U.S. Armed Forces; as are vehicles, vessels, and aircraft
operated by or for U.S. forces in connection with activities
under the VFA. These provisions likewise provide for the waiver
of the specific duties, taxes, charges, and fees that
correspond to these equipment.
The third difference adverted to by the Justice Leonen's
dissent is that the VFA contemplates the entry of troops for
training exercises, whereas EDCA allows the use of territory for
launching military and paramilitary operations conducted in
other states.245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat
activides only, whereas the entry and activities of U.S. forces
into Agreed Locations were borne of military necessity or had
a martial character, and were therefore not contemplated by
the VFA.246
This Court's jurisprudence however established in no uncertain
terms that combat-related activities, as opposed to actual
combat, were allowed under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities
as opposed to combat itself such as the one subject of the
instant petition, are indeed authorized.247
Hence, even if EDCA was borne of military necessity, it cannot
be said to have strayed from the intent of the VFA since
EDCA's combat-related components are allowed under the
treaty.
Moreover, both the VFA and EDCA are silent on what these
activities actually are. Both the VFA and EDCA deal with the
presence of U.S. forces within the Philippines, but make no
mention of being platforms for activity beyond Philippine
territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the
future the scope of judicial review does not cover potential
breaches of discretion but only actual occurrences or
blatantly illegal provisions. Hence, we cannot invalidate EDCA
on the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a
new concept not contemplated in the VFA or the MDT:
Agreed Locations, Contractors, Pre-positioning, and
Operational Control.248
As previously mentioned, these points shall be addressed fully
and individually in the latter analysis of EDCA's provisions.
However, it must already be clarified that the terms and
details used by an implementing agreement need not be
found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily
expressed word-for-word in the mother treaty. This concern
shall be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is
that the VFA does not have provisions that may be construed
as a restriction on or modification of obligations found in
existing statues, including the jurisdiction of courts, local
autonomy, and taxation. Implied in this argument is that EDCA
contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear
provisions of EDCA. Both the VFA and EDCA ensure Philippine
jurisdiction in all instances contemplated by both agreements,
with the exception of those outlined by the VFA in Articles III-VI.
In the VFA, taxes are clearly waived whereas in EDCA, taxes
are assumed by the government as will be discussed later on.
This fact does not, therefore, produce a diminution of
jurisdiction on the part of the Philippines, but rather a
recognition of sovereignty and the rights that attend it, some
of which may be waived as in the cases under Articles III-VI of
the VFA.
Taking off from these concerns, the provisions of EDCA must
be compared with those of the MDT and the VFA, which are
the two treaties from which EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized
activities" under EDCA: (1) U.S. personnel and (2) U.S.
contractors
The OSG argues250 that EDCA merely details existing policies
under the MDT and the VFA. It explains that EDCA articulates
the principle of defensive preparation embodied in Article II of
the MDT; and seeks to enhance the defensive, strategic, and
technological capabilities of both parties pursuant to the
objective of the treaty to strengthen those capabilities to
prevent or resist a possible armed attack. Respondent also
points out that EDCA simply implements Article I of the VFA,
which already allows the entry of U.S. troops and personnel
into the country. Respondent stresses this Court's recognition
in Lim v. Executive Secretary that U.S. troops and personnel are
authorized to conduct activities that promote the goal of
maintaining and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA
merely implement the MDT. According to them, the treaty
does not specifically authorize the entry of U.S. troops in the
country in order to maintain and develop the individual and
collective capacities of both the Philippines and the U.S. to
resist an armed attack. They emphasize that the treaty was
concluded at a time when there was as yet no specific
constitutional prohibition on the presence of foreign military
forces in the country.
Petitioners also challenge the argument that EDCA simply
implements the VFA. They assert that the agreement covers
only short-term or temporary visits of U.S. troops "from time to
time" for the specific purpose of combined military exercises
with their Filipino counterparts. They stress that, in contrast, U.S.
troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those
enumerated in Articles 111(1) and IV(4) thereof. Furthermore,
there is some degree of permanence in the presence of U.S.
troops in the country, since the effectivity of EDCA is
continuous until terminated. They proceed to argue that while
troops have a "rotational" presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. military and civilian personnel into
Philippine territory is already allowed under the VFA
We shall first deal with the recognition under EDCA of the
presence in the country of three distinct classes of individuals
who will be conducting different types of activities within the
Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian
personnel; and (3) U.S. contractors. The agreement refers to
them as follows:
"United States personnel" means United States
military and civilian personnel temporarily in the territory of the
Philippines in connection with activities approved by the
Philippines, as those terms are defined in the VFA.252
"United States forces" means the entity comprising United
States personnel and all property, equipment, and materiel of
the United States Armed Forces present in the territory of the
Philippines.253
"United States contractors" means companies and firms,
and their employees, under contract or subcontract to or on
behalf of the United States Department of Defense. United
States contractors are not included as part of the definition
of United States personnel in this Agreement, including within
the context of the VFA.254
United States forces may contract for any materiel, supplies,
equipment, and services (including construction) to be
furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or
person who provides such materiel, supplies, equipment,
or services. Such contracts shall be solicited, awarded, and
administered in accordance with the laws and regulations of
the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that
the agreement does not deal with the entry into the country of
U.S. personnel and contractors per se. While Articles
I(l)(b)256 and II(4)257 speak of "the right to access and use" the
Agreed Locations, their wordings indicate the presumption
that these groups have already been allowed entry into
Philippine territory, for which, unlike the VFA, EDCA has no
specific provision. Instead, Article II of the latter simply alludes
to the VFA in describing U.S. personnel, a term defined under
Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means
United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippine Government. Within this definition:
1. The term "military personnel" refers
to military members of the United States
Army, Navy, Marine Corps, Air Force, and
Coast Guard.
2. The term "civilian personnel" refers to
individuals who are neither nationals of nor
ordinarily resident in the Philippines and who
are employed by the United States armed
forces or who are accompanying the United
States armed forces, such as employees of
the American Red Cross and the United
Services Organization.258
Article II of EDCA must then be read with Article III of the VFA,
which provides for the entry accommodations to be
accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall
facilitate the admission of United States personnel and
their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt
from passport and visa regulations upon enteringand
departing the Philippines.
3. The following documents only, which shall be
required in respect of United States military personnel
who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and departure of
the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already
allows U.S. military and civilian personnel to be "temporarily in
the Philippines," so long as their presence is "in connection with
activities approved by the Philippine Government." The
Philippines, through Article III, even guarantees that it shall
facilitate the admission of U.S. personnel into the country and
grant exemptions from passport and visa regulations. The VFA
does not even limit their temporary presence to specific
locations.
Based on the above provisions, the admission and presence
of U.S. military and civilian personnel in Philippine territory are
already allowed under the VFA, the treaty supposedly being
implemented by EDCA. What EDCA has effectively done, in
fact, is merely provide the mechanism to identify the locations
in which U.S. personnel may perform allowed activities
pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the
country.
b. EDCA does not provide the legal basis for admission of U.S.
contractors into Philippine territory; their entry must be sourced
from extraneous Philippine statutes and regulations for the
admission of alien employees or business persons.
Of the three aforementioned classes of individuals who will be
conducting certain activities within the Agreed Locations, we
note that only U.S. contractors are not explicitly mentioned in
the VFA. This does not mean, though, that the recognition of
their presence under EDCA is ipso facto an amendment of the
treaty, and that there must be Senate concurrence before
they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate
admission into the Philippines. Articles III and IV, in fact, merely
grant them the right of access to, and the authority to
conduct certain activities within the Agreed Locations. Since
Article II(3) of EDCA specifically leaves out U.S.
contractors from the coverage of the VFA, they shall not be
granted the same entry accommodations and privileges as
those enjoyed by U.S. military and civilian personnel under the
VFA.
Consequently, it is neither mandatory nor obligatory on the
part of the Philippines to admit U.S. contractors into the
country.259 We emphasize that the admission of aliens into
Philippine territory is "a matter of pure permission and simple
tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors
are subject to Philippine immigration laws.261The latter must
comply with our visa and passport regulations262 and prove
that they are not subject to exclusion under any provision of
Philippine immigration laws.263 The President may also deny
them entry pursuant to his absolute and unqualified power to
prohibit or prevent the admission of aliens whose presence in
the country would be inimical to public interest.264
In the same vein, the President may exercise the plenary
power to expel or deport U.S. contractors265 as may be
necessitated by national security, public safety, public health,
public morals, and national interest.266 They may also be
deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act267 and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires a
request for removal from the Philippine government before a
member of the U.S. personnel may be "dispos[ed] xx x outside
of the Philippines."
c. Authorized activities of U.S. military and civilian personnel
within Philippine territory are in furtherance of the MDT and the
VFA
We begin our analysis by quoting the relevant sections of the
MDT and the VFA that pertain to the activities in which U.S.
military and civilian personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this
Treaty, the Parties separately and jointly byself-help
and mutual aid will maintain and develop their individual and
collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies,
will consult together from time to time regarding
the implementation of this Treaty and whenever in the opinion
of either of them the territorial integrity, political
independence or security of either of the Parties is threatened
by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense
Treaty of August 30, 1951;
Noting that from time to time elements of the United States
armed forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and
the Republic of the Philippines promotes their common
security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means
United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippine Government. Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of
the Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular,
from any political activity in the Philippines. The Government of
the United States shall take all measures within its authority to
ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies,
and other property imported into or acquired in the Philippines
by or on behalf of the United States armed forces in
connection with activities to which this agreement applies,
shall be free of all Philippine duties, taxes and other similar
charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines
at any time, free from export duties, taxes, and other similar
charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces
may enter the Philippines upon approval of the Government
of the Philippines in accordance with procedures stipulated
in implementing arrangements.
2. Vessels operated by or for the United States armed forces
may enter the Philippines upon approval of the Government of
the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing
such vessels, and such agreed implementing arrangements as
necessary. x x x (Emphases Supplied)
Manifest in these provisions is the abundance of references to
the creation of further "implementing arrangements" including
the identification of "activities [to be] approved by the
Philippine Government." To determine the parameters of these
implementing arrangements and activities, we referred to the
content, purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in
which both countries shall engage in joint activities, so that
they can maintain and develop their defense capabilities. The
wording itself evidently invites a reasonable construction that
the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation269 and the
subsequent practice270 of the parties show that the MDT
independently allows joint military exercises in the country. Lim
v. Executive Secretary271 and Nicolas v. Romulo272 recognized
that Balikatan exercises, which are activities that seek to
enhance and develop the strategic and technological
capabilities of the parties to resist an armed attack, "fall
squarely under the provisions of the RP-US MDT."273 In Lim, the
Court especially noted that the Philippines and the U.S.
continued to conduct joint military exercises even after the
expiration of the MBA and even before the conclusion of the
VFA.274 These activities presumably related to the Status of
Forces Agreement, in which the parties agreed on the status
to be accorded to U.S. military and civilian personnel while
conducting activities in the Philippines in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT
that these joint activities may be conducted on Philippine or
on U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan
territory of either of the Parties, or on the island territories under
its jurisdiction in the Pacific or on its armed forces, public
vessels or aircraft in the Pacific." Surely, in maintaining and
developing our defense capabilities, an assessment or training
will need to be performed, separately and jointly by self-help
and mutual aid, in the territories of the contracting parties. It is
reasonable to conclude that the assessment of defense
capabilities would entail understanding the terrain, wind flow
patterns, and other environmental factors unique to the
Philippines.
It would also be reasonable to conclude that a simulation of
how to respond to attacks in vulnerable areas would be part
of the training of the parties to maintain and develop their
capacity to resist an actual armed attack and to test and
validate the defense plan of the Philippines. It is likewise
reasonable to imagine that part of the training would involve
an analysis of the effect of the weapons that may be used
and how to be prepared for the eventuality. This Court
recognizes that all of this may require training in the area
where an armed attack might be directed at the Philippine
territory.
The provisions of the MDT must then be read in conjunction
with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military
and civilian personnel in the Philippines is "in connection with
activities approved by the Philippine Government." While the
treaty does not expressly enumerate or detail the nature of
activities of U.S. troops in the country, its Preamble makes
explicit references to the reaffirmation of the obligations of
both countries under the MDT. These obligations include the
strengthening of international and regional security in the
Pacific area and the promotion of common security interests.
The Court has already settled in Lim v. Executive Secretary that
the phrase "activities approved by the Philippine Government"
under Article I of the VFA was intended to be ambiguous in
order to afford the parties flexibility to adjust the details of the
purpose of the visit of U.S. personnel.276 In ruling that the Terms
of Reference for the Balikatan Exercises in 2002 fell within the
context of the treaty, this Court explained:
After studied reflection, it appeared farfetched that
the ambiguity surrounding the meaning of the word "activities"
arose from accident. In our view, it was deliberately made that
way to give both parties a certain leeway in negotiation. In this
manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises
may include training on new techniques of patrol and
surveillance to protect the nation's marine resources, sea
search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions,
and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that "Balikatan
02-1," a "mutual anti-terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to
combat itself- such as the one subject of the instant petition,
are indeed authorized. (Emphases Supplied)
The joint report of the Senate committees on foreign relations
and on national defense and security further explains the wide
range and variety of activities contemplated in the VFA, and
how these activities shall be identified:277
These joint exercises envisioned in the VFA are not limited to
combat-related activities; they have a wide range and
variety. They include exercises that will reinforce the AFP's
ability to acquire new techniques of patrol and surveillance to
protect the country's maritime resources; sea-search and
rescue operations to assist ships in distress; and disaster-relief
operations to aid the civilian victims of natural calamities, such
as earthquakes, typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers;
training in aircraft maintenance and equipment repair; civic-
action projects; and consultations and meetings of the
Philippine-U.S. Mutual Defense Board. It is at the level of the
Mutual Defense Board-which is headed jointly by the Chief of
Staff of the AFP and the Commander in Chief of the U.S.
Pacific Command-that the VFA exercises are planned. Final
approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines
what activities will be conductedbetween the armed forces of
the U.S. and the Philippines. The VFA regulates and provides
the legal framework for the presence, conduct and legal
status of U.S. personnel while they are in the country for visits,
joint exercises and other related activities. (Emphases
Supplied)
What can be gleaned from the provisions of the VFA, the joint
report of the Senate committees on foreign relations and on
national defense and security, and the ruling of this Court
in Lim is that the "activities" referred to in the treaty are meant
to be specified and identified infurther agreements. EDCA is
one such agreement.
EDCA seeks to be an instrument that enumerates the
Philippine-approved activities of U.S. personnel referred to in
the VFA. EDCA allows U.S. military and civilian personnel to
perform "activities approved by the Philippines, as those terms
are defined in the VFA" 278 and clarifies that these activities
include those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training
activities; humanitarian assistance and disaster relief activities;
and such other activities as may be agreed upon by the
Parties279
2. Training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel;
and such other activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations
for construction activities and other types of activity, including
alterations and improvements thereof281
4. Exercise of all rights and authorities within the Agreed
Locations that are necessary for their operational control or
defense, including the adoption of apfropriate measures to
protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities 283
6. Operation of their own telecommunication systems,
including the utilization of such means and services as are
required to ensure the full ability to operate
telecommunication systems, as well as the use of the
necessary radio spectrum allocated for this purpose284
According to Article I of EDCA, one of the purposes of these
activities is to maintain and develop, jointly and by mutual aid,
the individual and collective capacities of both countries to
resist an armed attack. It further states that the activities are in
furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those
under the Terms of Reference285 mentioned in Lim. Both EDCA
and the Terms of Reference authorize the U.S. to perform the
following: (a) participate in training exercises; (b) retain
command over their forces; (c) establish temporary structures
in the country; (d) share in the use of their respective
resources, equipment and other assets; and (e) exercise their
right to self-defense. We quote the relevant portion of the
Terms and Conditions as follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be
established. Temporary structures such as those for troop
billeting, classroom instruction and messing may be set up for
use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US
Exercise Co-Directors under the authority of the Chief of Staff,
AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective forces
under the overall authority of the Exercise Co-Directors. RP
and US participants shall comply with operational instructions
of the AFP during the FTX.
The exercise shall be conducted and completed within a
period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to wind
up and terminate the Exercise and other activities within the six
month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting
and training Exercise relative to Philippine efforts against the
ASG, and will be conducted on the Island of Basilan. Further
advising, assisting and training exercises shall be conducted in
Malagutay and the Zamboanga area. Related activities in
Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without
prejudice to their right of self-defense.
These terms of Reference are for purposes of this Exercise only
and do not create additional legal obligations between the
US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct
of mutual military assisting, advising and
trainingof RP and US Forces with the primary
objective of enhancing the operational
capabilities of both forces to combat
terrorism.
b. At no time shall US Forces operate
independently within RP territory.
c. Flight plans of all aircraft involved in the
exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance
with their respective laws and regulations, in the use of their
resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and
framework of the MDT and the VFA, we find that EDCA has
remained within the parameters set in these two treaties. Just
like the Terms of Reference mentioned in Lim, mere
adjustments in detail to implement the MDT and the VFA can
be in the form of executive agreements.
Petitioners assert287 that the duration of the activities
mentioned in EDCA is no longer consistent with the temporary
nature of the visits as contemplated in the VFA. They point out
that Article XII(4) of EDCA has an initial term of 10 years, a term
automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such
length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro
likewise argues in her Concurring and Dissenting Opinion that
the VFA contemplated mere temporary visits from U.S. forces,
whereas EDCA allows an unlimited period for U.S. forces to
stay in the Philippines.288
However, the provisions of EDCA directly contradict this
argument by limiting itself to 10 years of effectivity. Although
this term is automatically renewed, the process for terminating
the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period.
Clearly, this method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could
not have been by chance that the VFA does not include a
maximum time limit with respect to the presence of U.S.
personnel in the country. We construe this lack of specificity as
a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the
"adjustment in detail" stage of the implementation of the
treaty. We interpret the subsequent, unconditional
concurrence of the Senate in the entire text of the VFA as an
implicit grant to the President of a margin of appreciation in
determining the duration of the "temporary" presence of U.S.
personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces
under EDCA is "more permanent" in nature.289However, this
argument has not taken root by virtue of a simple glance at its
provisions on the effectivity period. EDCA does not grant
permanent bases, but rather temporary rotational access to
facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes
rotational access to facilities of the Armed Forces of the
Philippines – but not permanent bases which are prohibited
under the Philippine Constitution - with the result of reducing
response time should an external threat from a common
adversary crystallize.290
EDCA is far from being permanent in nature compared to the
practice of states as shown in other defense cooperation
agreements. For example, Article XIV(l) of the U.S.-Romania
defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall
enter into force in accordance with the internal laws of each
Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces
Agreement reads:
This Agreement has been concluded for an indefinite period of
time. It may be terminated by written notification by either
Party and in that event it terminates 2 years after the receipt
of the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly
provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-
VIII, and Annexes A and B, shall become effective on the date
of the last signature affixed below and shall remain in force
until terminated by the Parties, provided that it may be
terminated by either Party upon 180 days written notice of its
intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force
Posture Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and
thereafter shall continue in force, but may be terminated by
either Party at any time upon one year's written notice to the
other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia
treaty but with a term less than half of that is provided in the
latter agreement. This means that EDCA merely follows the
practice of other states in not specifying a non-extendible
maximum term. This practice, however, does not
automatically grant a badge of permanency to its terms.
Article XII(4) of EDCA provides very clearly, in fact, that its
effectivity is for an initial term of 10 years, which is far shorter
than the terms of effectivity between the U.S. and other states.
It is simply illogical to conclude that the initial, extendible term
of 10 years somehow gives EDCA provisions a permanent
character.
The reasoning behind this interpretation is rooted in the
constitutional role of the President who, as Commander-in-
Chief of our armed forces, is the principal strategist of the
nation and, as such, duty-bound to defend our national
sovereignty and territorial integrity;291 who, as chief architect of
our foreign relations, is the head policymaker tasked to assess,
ensure, and protect our national security and interests;292 who
holds the most comprehensive and most confidential
information about foreign countries293 that may affect how we
conduct our external affairs; and who has unrestricted access
to highly classified military intelligence data294 that may
threaten the life of the nation. Thus, if after a geopolitical
prognosis of situations affecting the country, a belief is
engendered that a much longer period of military training is
needed, the President must be given ample discretion to
adopt necessary measures including the flexibility to set an
extended timetable.
Due to the sensitivity and often strict confidentiality of these
concerns, we acknowledge that the President may not always
be able to candidly and openly discuss the complete situation
being faced by the nation. The Chief Executive's hands must
not be unduly tied, especially if the situation calls for crafting
programs and setting timelines for approved activities. These
activities may be necessary for maintaining and developing
our capacity to resist an armed attack, ensuring our national
sovereignty and territorial integrity, and securing our national
interests. If the Senate decides that the President is in the best
position to define in operational terms the meaning
of temporary in relation to the visits, considered individually or
in their totality, the Court must respect that policy decision. If
the Senate feels that there is no need to set a time limit to
these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in
regard to the extent of the "temporary" nature of the visits of
U.S. personnel does not suggest that the duration to which the
President may agree is unlimited. Instead, the boundaries of
the meaning of the term temporary in Article I of the treaty
must be measured depending on the purpose of each visit or
activity.295 That purpose must be analyzed on a case-by-case
basis depending on the factual circumstances surrounding the
conclusion of the implementing agreement. While the validity
of the President's actions will be judged under less stringent
standards, the power of this Court to determine whether there
was grave abuse of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within
Philippine territory - who were legitimately permitted to enter
the country independent of EDCA - are subject to relevant
Philippine statutes and regulations and must be consistent with
the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's
purported practice of hiring private security contractors in
other countries. They claim that these contractors - one of
which has already been operating in Mindanao since 2004 -
have been implicated in incidents or scandals in other parts of
the globe involving rendition, torture and other human rights
violations. They also assert that these contractors employ
paramilitary forces in other countries where they are
operating.
Under Articles III and IV of EDCA, U.S. contractors are
authorized to perform only the following activities:
1. Training; transit; support and related activities;
refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel;
communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and
materiel; and such other activities as the Parties may
agree297
2. Prepositioning and storage of defense equipment,
supplies, and materiel, including delivery,
management, inspection, use, maintenance, and
removal of such equipment, supplies and materiel298
3. Carrying out of matters in accordance with, and to
the extent permissible under, U.S. laws, regulations,
and policies299
EDCA requires that all activities within Philippine territory be in
accordance with Philippine law. This means that certain
privileges denied to aliens are likewise denied to foreign
military contractors. Relevantly, providing security300and
carrying, owning, and possessing firearms301 are illegal for
foreign civilians.
The laws in place already address issues regarding the
regulation of contractors. In the 2015 Foreign Investment
Negative list,302 the Executive Department has already
identified corporations that have equity restrictions in
Philippine jurisdiction. Of note is No. 5 on the list - private
security agencies that cannot have any foreign equity by
virtue of Section 4 of Republic Act No. 5487;303 and No. 15,
which regulates contracts for the construction of defense-
related structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue
of EDCA must subscribe to corporate and civil requirements
imposed by the law, depending on the entity's corporate
structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the
regulation of the activities of U.S. contractors has been clear
even to some of the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn
Marine, was accused of spilling fuel in the waters off Manila
Bay.304 The Senate Committee on Foreign Relations and the
Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations
by the contractor.305 The U.S. Navy investigated the contractor
and promised stricter guidelines to be imposed upon its
contractors.306 The statement attributed to Commander Ron
Steiner of the public affairs office of the U.S. Navy's 7th Fleet -
that U.S. Navy contractors are bound by Philippine laws - is of
particular relevance. The statement acknowledges not just the
presence of the contractors, but also the U.S. position that
these contractors are bound by the local laws of their host
state. This stance was echoed by other U.S. Navy
representatives.307
This incident simply shows that the Senate was well aware of
the presence of U.S. contractors for the purpose of fulfilling the
terms of the VFA. That they are bound by Philippine law is
clear to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted
access to the Agreed Locations, all their activities must be
consistent with Philippine laws and regulations and pursuant to
the MDT and the VFA.
While we recognize the concerns of petitioners, they do not
give the Court enough justification to strike down EDCA. In Lim
v. Executive Secretary, we have already explained that we
cannot take judicial notice of claims aired in news reports, "not
because of any issue as to their truth, accuracy, or impartiality,
but for the simple reason that facts must be established in
accordance with the rules of evidence."308 What is more, we
cannot move one step ahead and speculate that the alleged
illegal activities of these contractors in other countries would
take place in the Philippines with certainty. As can be seen
from the above discussion, making sure that U.S. contractors
comply with Philippine laws is a function of law enforcement.
EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly
excluded from the coverage of the VFA. As visiting aliens, their
entry, presence, and activities are subject to all laws and
treaties applicable within the Philippine territory. They may be
refused entry or expelled from the country if they engage in
illegal or undesirable activities. There is nothing that prevents
them from being detained in the country or being subject to
the jurisdiction of our courts. Our penal laws,309 labor
laws,310 and immigrations laws311 apply to them and therefore
limit their activities here. Until and unless there is another law or
treaty that specifically deals with their entry and activities, their
presence in the country is subject to unqualified Philippine
jurisdiction.
EDCA does not allow the presence of U.S.-owned or -
controlled military facilities and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the
establishment of U.S. military bases through the
"euphemistically" termed "Agreed Locations. "312 Alluding to
the definition of this term in Article II(4) of EDCA, they point out
that these locations are actually military bases, as the
definition refers to facilities and areas to which U.S. military
forces have access for a variety of purposes. Petitioners claim
that there are several badges of exclusivity in the use of the
Agreed Locations by U.S. forces. First, Article V(2) of EDCA
alludes to a "return" of these areas once they are no longer
needed by U.S. forces, indicating that there would be some
transfer of use. Second, Article IV(4) ofEDCA talks about
American forces' unimpeded access to the Agreed Locations
for all matters relating to the prepositioning and storage of U.S.
military equipment, supplies, and materiel. Third, Article VII of
EDCA authorizes U.S. forces to use public utilities and to
operate their own telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked
provisions of EDCA by presenting so-called "badges of
exclusivity," despite the presence of contrary provisions within
the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA.
However, the use of the word "return" is within the context of a
lengthy provision. The provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed
Locations, or any portion thereof, including non-relocatable
structures and assemblies constructed, modified, or improved
by the United States, once no longer required by United States
forces for activities under this Agreement. The Parties or the
Designated Authorities shall consult regarding the terms of
return of any Agreed Locations, including possible
compensation for improvements or construction.
The context of use is "required by United States forces for
activities under this Agreement." Therefore, the return of an
Agreed Location would be within the parameters of an
activity that the Mutual Defense Board (MDB) and the Security
Engagement Board (SEB) would authorize. Thus, possession by
the U.S. prior to its return of the Agreed Location would be
based on the authority given to it by a joint body co-chaired
by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National
Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the
Philippines and the U.S., or through their Designated
Authorities. This provision, seen as a whole, contradicts
petitioners' interpretation of the return as a "badge of
exclusivity." In fact, it shows the cooperation and partnership
aspect of EDCA in full bloom.
Second, the term "unimpeded access" must likewise be
viewed from a contextual perspective. Article IV(4) states that
U.S. forces and U.S. contractors shall have "unimpeded access
to Agreed Locations for all matters relating to the
prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection,
use, maintenance, and removal of such equipment, supplies
and materiel."
At the beginning of Article IV, EDCA states that the Philippines
gives the U.S. the authority to bring in these equipment,
supplies, and materiel through the MDB and SEB security
mechanism. These items are owned by the U.S.,314 are
exclusively for the use of the U.S.315 and, after going through
the joint consent mechanisms of the MDB and the SEB, are
within the control of the U.S.316 More importantly, before these
items are considered prepositioned, they must have gone
through the process of prior authorization by the MDB and the
SEB and given proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is
a necessary adjunct to the ownership, use, and control of the
U.S. over its own equipment, supplies, and materiel and must
have first been allowed by the joint mechanisms in play
between the two states since the time of the MDT and the
VFA. It is not the use of the Agreed Locations that is
exclusive per se; it is mere access to items in order to exercise
the rights of ownership granted by virtue of the Philippine Civil
Code.318
Philippines by the U.S., EDCA provides that ownership is
retained by the latter. In contrast, the MBA dictates that the
U.S. retains ownership over immovable and movable
properties.
To our mind, both EDCA and the MBA simply incorporate what
is already the law of the land in the Philippines. The Civil
Code's provisions on ownership, as applied, grant the owner of
a movable property full rights over that property, even if
located in another person's property.324
The parallelism, however, ends when the situation involves
facilities that can be considered immovable. Under the MBA,
the U.S. retains ownership if it paid for the facility.325 Under
EDCA, an immovable is owned by the Philippines, even if built
completely on the back of U.S. funding.326 This is consistent
with the constitutional prohibition on foreign land ownership.327
Despite the apparent similarity, the ownership of property is
but a part of a larger whole that must be considered before
the constitutional restriction is violated. Thus, petitioners' points
on operational control will be given more attention in the
discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed
Moreover, a direct comparison of the MBA and EDCA will
result in several important distinctions that would allay
suspicion that EDCA is but a disguised version of the MBA.
b. There are substantial matters that the US. cannot do under
EDCA, but which it was authorized to do under the 1947 MBA
The Philippine experience with U.S. military bases under the
1947 MBA is simply not possible under EDCA for a number of
important reasons.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in
and over Philippine territory occupied by American bases. In
contrast, the U.S. under EDCA does not enjoy any such right
over any part of the Philippines in which its forces or
equipment may be found. Below is a comparative table
between the old treaty and EDCA:

1947 MBA/ 1946 Treaty of EDCA

As for the view that EDCA authorizes U.S. forces to use public
General Relations
utilities and to operate their own telecommunications system,
it will be met and answered in part D, infra. 1947 MBA, Art. I(1): EDCA, preamble:

Petitioners also point out319 that EDCA is strongly reminiscent of The Government of the
and in fact bears a one-to-one correspondence with the Republic of
provisions of the 1947 MBA. They assert that both agreements the Philippines (hereinafter
(a) allow similar activities within the area; (b) provide for the referred to as the
same "species of ownership" over facilities; and (c) grant Philippines) grants to the
operational control over the entire area. Finally, they Government of the United
argue320 that EDCA is in fact an implementation of the new States of America (hereinafter
defense policy of the U.S. According to them, this policy was referred to as the United
not what was originally intended either by the MDT or by the
States) the right to retain the
VFA. use of the bases in the
Philippines listed in Annex A
On these points, the Court is not persuaded.
attached hereto.
The similar activities cited by petitioners321 simply show that 1947 MBA, Art. XVII(2):
under the MBA, the U.S. had the right to construct, operate,
maintain, utilize, occupy, garrison, and control the bases. The All buildings and
so-called parallel provisions of EDCA allow only operational structures which are erected
control over the Agreed Locations specifically for construction by the United States in the
activities. They do not allow the overarching power to bases shall be the property of
operate, maintain, utilize, occupy, garrison, and control a
the United States and may be
base with full discretion. EDCA in fact limits the rights of the U.S. removed by it before the
in respect of every activity, including construction, by giving
expiration of this Agreement
the MDB and the SEB the power to determine the details of all or the earlier relinquishment of
activities such as, but not limited to, operation, maintenance, the base on which the
utility, occupancy, garrisoning, and control.322 structures are situated. There
shall be no obligation on the
The "species of ownership" on the other hand, is distinguished part of the Philippines or of
by the nature of the property. For immovable property the United States to rebuild or
constructed or developed by the U.S., EDCA expresses that repair any destruction or
ownership will automatically be vested to the Philippines.323 On damage inflicted from any
the other hand, for movable properties brought into the
Affirming that the Parties
share an understanding for
the United States not to
establish a permanent military
presence or base in the
territory of the Philippines;
xxxx
Recognizing that all United
States access to and use of
facilities and areas will be at
the invitation of the
Philippines and with full
respect for the Philippine
Constitution and Philippine
laws;
xxxx
EDCA, Art. II(4):
"Agreed
Locations" means facilities
and areas that are provided
by the Government of the
Philippines through the AFP
and that United States forces,
United States contractors, and
cause whatsoever on any of
the said buildings or structures
owned or used by the United
States in the bases. x x x x.
1946 Treaty of Gen. Relations,
Art. I:
The United States of America
agrees to withdraw and
surrender, and does hereby
withdraw and surrender, all
rights of possession,
supervision, jurisdiction,
control or sovereignty existing
and exercised by the United
States of America in and over
the territory and the people of
the Philippine Islands, except
the use of such bases,
necessary appurtenances to
such bases, and the rights
incident thereto, as the United
States of America, by
agreement with the Republic
of the Philippines may deem
necessary to retain for the
mutual protection of the
Republic of the Philippines
and of the United States of
America. x x x.
Second, in the bases agreement, the U.S. and the Philippines
were visibly not on equal footing when it came to deciding
whether to expand or to increase the number of bases, as the
Philippines may be compelled to negotiate with the U.S. the
moment the latter requested an expansion of the existing
bases or to acquire additional bases. In EDCA, U.S. access is
purely at the invitation of the Philippines.
1947 MBA/ 1946 Treaty of
General Relations
1947 MBA, Art.I(3):
The Philippines agree to enter
into negotiations with the
United States at the latter's
request, to permit the United
States to expand such bases,
to exchange such bases for
other bases, to acquire
additional bases, or relinquish
rights to bases, as any of such
exigencies may be required
by military necessity.
1946 Treaty of Gen. Relations,
Art. I:
The United States of
America agrees to
withdraw and surrender, and
does hereby withdraw and
surrender, all rights of
possession, supervision,
jurisdiction, control or
sovereignty existing and
exercised by the United States
of America in and over the
territory and the people of the
others as mutually agreed,
shall have the right to access
and use pursuant to this
Agreement. Such Agreed
Locations may be listed in an
annex to be appended to this
Agreement, and may be
further described in
implementing arrangements.
EDCA, Art. V:
1. The Philippines shall retain
ownership of and title to
Agreed Locations.
xxxx
4. All buildings, non-
relocatable structures, and
assemblies affixed to the
land in the Agreed
Locations, including ones
altered or improved by United
States forces, remain the
property of the
Philippines.Permanent
buildings constructed
United States forces become
the property of the
Philippines, once constructed,
but shall be used by United
States forces until no longer
required by United States
forces.
EDCA
EDCA, preamble:
Recognizing that all United
States access to and use of
facilities and areas will be at
the invitation of the
Philippines and with full
respect for the Philippine
Constitution and Philippine
laws;
xxxx
EDCA. Art. II(4):
"Agreed
Locations" means facilities
and areas that are provided
by the Government of the
Philippines through the AFP
and that United States forces,
United States contractors, and
others as mutually agreed,
shall have the right to access
and use pursuant to this
Agreement. Such Agreed
Locations may be listed in an
annex to be appended to this
Philippine Islands, except the Agreement, and may be
use of such bases, necessary further described in
appurtenances to such bases, implementing arrangements.
and the rights incident
thereto, as the United States
of America, by agreement
with the Republic of the
Philippines may deem
necessary to retain for the
mutual protection of the
Republic of the Philippines
and of the United States of
America. x x x.
Third, in EDCA, the Philippines is- guaranteed access over the
entire area of the Agreed Locations. On the other hand, given
that the U.S. had complete control over its military bases under
the 1947 MBA, the treaty did not provide for any express
recognition of the right of access of Philippine authorities.
Without that provision and in light of the retention of U.S.
sovereignty over the old military bases, the U.S. could
effectively prevent Philippine authorities from entering those
bases.
1947 MBA EDCA
No equivalent provision. EDCA, Art. III(5):
by
The Philippine Designated
Authority and its authorized
representative shall have
access to the entire area of
the Agreed Locations. Such
access shall be provided
promptly consistent with
operational safety and
security requirements in
accordance with agreed
procedures developed by the
Parties.
Fourth, in the bases agreement, the U.S. retained the right,
power, and authority over the establishment, use, operation,
defense, and control of military bases, including the limits of
territorial waters and air space adjacent to or in the vicinity of
those bases. The only standard used in determining the extent
of its control was military necessity. On the other hand, there is
no such grant of power or authority under EDCA. It merely
allows the U.S. to exercise operational control over the
construction of Philippine-owned structures and facilities:
1947 MBA EDCA
1947 MBA, Art.I(2): EDCA, Art. III(4):
The Philippines agrees The Philippines hereby grants to the
to permit the United United States, through bilateral
States, upon notice to security mechanisms, such as the
the Philippines, to use MDB and SEB, operational
such of those control of Agreed
bases listed in Annex Locations for construction
B as the United States activities and authority to undertake
determines to be such activities on, and make
required by military alterations and improvements to,
necessity. Agreed Locations. United States
forces shall consult on issues
1947 MBA, Art. III(1): regarding such construction,
alterations, and
improvements based on the Parties'
It is mutually agreed
shared intent that the technical
that the United
requirements and construction
Statesshall have
standards of any such projects
the rights, power and
undertaken by or on behalf of
authority within the
United States forces should be
bases which
consistent with the requirements
are necessary for the
and standards of both Parties.
establishment, use,
operation and defense
thereof or appropriate
for the control
thereof and all the
rights, power and
authority within the
limits of territorial waters
and air space adjacent
to, or in the vicinity of,
the bases which
are necessary to
provide access to them,
or appropriate for their
control.
Fifth, the U.S. under the bases agreement was given the
authority to use Philippine territory for additional staging areas,
bombing and gunnery ranges. No such right is given under
EDCA, as seen below:
1947 MBA
1947 MBA, Art. VI:
The United States shall,
subject to previous
agreement with the
Philippines, have
the right to use land
and coastal sea
areas of appropriate
size and location for
periodic
maneuvers, for
additional staging
areas, bombing and
gunnery ranges, and
for such intermediate
airfields as may be
required for safe and
efficient air operations.
Operations in such
areas shall be carried
on with due regard
and safeguards for the
public safety.
1947 MBA, Art.I(2):
The Philippines agrees
to permit the United
States, upon notice to
the Philippines, to use
such of those
bases listed in Annex
B as the United States
determines to be
required by military
necessity.
Sixth, under the MBA, the U.S. was given the right, power, and
authority to control and prohibit the movement and operation
of all types of vehicles within the vicinity of the bases. The U.S.
does not have any right, power, or authority to do so under
EDCA.
1947 MBA
1947 MBA, Art. 111(2)(c)
Such rights, power and
authority shall include, inter
alia, the right, power and
authority: x x x x to
control (including the right to
prohibit) in so far as may be
required for the efficient
operation and safety of the
EDCA
EDCA, Art. III(1):
With consideration of the views of
the Parties,
the Philippines hereby authorizes and
agrees that United States forces,
United States contractors, and
vehicles, vessels, and aircraft
operated by or for United States
forces may conduct the following
activities with respect to Agreed
Locations: training; transit; support
and related activities; refueling of
aircraft; bunkering of vessels;
temporary maintenance of vehicles,
vessels, and aircraft; temporary
accommodation of personnel;
communications; prepositioning of
equipment, supplies, and materiel;
deploying forces and materiel; and
such other activities as the Parties
may agree.
EDCA
No equivalent provision.
bases, and within the limits of
military
necessity, anchorages,
moorings, landings, takeoffs,
movements and operation of
ships and water-borne craft,
aircraft and other vehicles on
water, in the air or on land
comprising
Seventh, under EDCA, the U.S. is merely given temporary
access to land and facilities (including roads, ports, and
airfields). On the other hand, the old treaty gave the U.S. the
right to improve and deepen the harbors, channels,
entrances, and anchorages; and to construct or maintain
necessary roads and bridges that would afford it access to its
military bases.
1947 MBA EDCA
1947 MBA, Art. III(2)(b): EDCA, Art. III(2):
Such rights, power and When requested, the
authority shall include, inter Designated Authority of the
alia, the right, power and Philippines shall assist
authority: x x x x to improve in facilitating transit or
and deepen the harbors, temporary access by United
channels, entrances and States forces to public land
anchorages, and to construct and facilities (including roads,
or maintain necessary ports, and airfields), including
roadsand bridges affording those owned or controlled by
access to the bases. local governments, and to
other land and facilities
(including roads, ports, and
airfields).
Eighth, in the 1947 MBA, the U.S. was granted the automatic
right to use any and all public utilities, services and facilities,
airfields, ports, harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers, and streams in the Philippines in
the same manner that Philippine military forces enjoyed that
right. No such arrangement appears in EDCA. In fact, it merely
extends to U.S. forces temporary access to public land and
facilities when requested:
1947 MBA EDCA
1947 MBA, Art. VII: EDCA, Art. III(2):
It is mutually agreed that When requested, the
the United States may employ Designated Authority of the
and use for United States Philippines shall assist
military forces any and all in facilitating transit or
public utilities, other services temporary access by United
and facilities, airfields, ports, States forces to public land
harbors, roads, highways, and facilities (including roads,
railroads, bridges, viaducts, ports, and airfields), including
canals, lakes, rivers and those owned or controlled by
streams in the local governments, and to
Philippines under conditions other land and facilities
no less favorable than (including roads, ports, and
those that may airfields).
be applicablefrom time to
time to the military forces of
the Philippines.
Ninth, under EDCA, the U.S. no longer has the right, power,
and authority to construct, install, maintain, and
employ any type of facility, weapon, substance, device,
vessel or vehicle, or system unlike in the old treaty. EDCA
merely grants the U.S., through bilateral security mechanisms,
the authority to undertake construction, alteration, or
improvements on the Philippine-owned Agreed Locations.
1947 MBA EDCA
1947 MBA, Art. III(2)(e): EDCA, Art. III(4): 1947 MBA EDCA

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

Such rights, power and The Philippines hereby grants
authority shall include, inter to the United States, through
alia, the right, power and bilateral security mechanisms, It is mutually agreed that 1. "United States
authority: x x x x to construct, such as the MDB and SEB, the United States shall have personnel" means United
install, maintain, and operational control of Agreed the right to bring into the States military and civilian
employ on any base any Locations for construction Philippines members of the personneltemporarily in the
type of facilities, weapons, activities and authority to United States military forces territory of the Philippines in
substance, device, vessel or undertake such activities on, and the United States connection with activities
vehicle on or under the and make alterations and nationals employed by or approved by the
ground, in the air or on or improvements to, Agreed under a contract with the Philippines, as those terms are
under the water that may be Locations. United States United States together with defined in the VFA.
requisite or appropriate, forces shall consult on issues their families, and technical
including meteorological regarding such construction, personnel of other x xx x
systems, aerial and water alterations, and nationalities (not being
navigation lights, radio and improvements based on the persons excluded by the laws
3. "United States
radar apparatus and Parties' shared intent that the of the Philippines) in
contractors" means
electronic devices, of any technical requirements and connection with the
companies and firms, and
desired power, type of construction standards of any construction, maintenance, or
their employees, under
emission and frequency. such projects undertaken by operation of the bases. The
contract or subcontract to or
or on behalf of United States United States shall make
on behalf of the United States
forces should be consistent suitable arrangements so that
Department of Defense.
with the requirements and such persons may be readily
United States contractors
standards of both Parties. identified and their status
are not includedas part of
established when necessary
the definition of United States
by the Philippine authorities.
Tenth, EDCA does not allow the U.S. to acquire, by personnel in this
Such persons, other than
condemnation or expropriation proceedings, real property Agreement, including within
members of the United States
belonging to any private person. The old military bases the context of the VFA.
armed forces in uniform, shall
agreement gave this right to the U.S. as seen below: present their travel
documents to the
appropriate Philippine
1947 MBA EDCA authorities for visas, it being
understood that no objection
1947 MBA, Art. XXII(l): No equivalent provision.
will be made to their travel to
the Philippines as non-
Whenever it is necessary immigrants.
to acquire by

condemnation or Twelfth, EDCA does not allow the U.S. to exercise jurisdiction
expropriation proceedings over any offense committed by any person within the Agreed
real property belonging to Locations, unlike in the former military bases:
any private
persons, associations or
1947 MBA EDCA
corporations located in bases
named in Annex A and Annex 1947 MBA, Art. XIII(l)(a): No equivalent provision.
B in order to carry out the
purposes of this Agreement,
The Philippines consents that
the Philippines will institute
the United
and prosecute such
condemnation or
expropriation proceedings in States shall have the right to
accordance with the laws of exercise jurisdiction over the
the Philippines. The United following offenses: (a) Any
States agrees to reimburse the offense committed by any
Philippines for all the person within any
reasonable expenses, base except where the
damages and costs therebv offender and offended
incurred, including the value parties are both Philippine
of the property as determined citizens (not members of the
by the Court. In addition, armed forces of the United
subject to the mutual States on active duty) or the
agreement of the two offense is against the security
Governments, the United of the Philippines.
States will reimburse the
Philippines for the reasonable
Thirteenth, EDCA does not allow the U.S. to operate military
costs of transportation and
post exchange (PX) facilities, which is free of customs duties
removal of any occupants
and taxes, unlike what the expired MBA expressly allowed.
displaced or ejected by
Parenthetically, the PX store has become the cultural icon of
reason of the condemnation
U.S. military presence in the country.
or expropriation.

1947 MBA EDCA

Eleventh, EDCA does not allow the U.S. to unilaterally bring into
the country non-Philippine nationals who are under its employ, 1947 MBA, Art. XVIII(l): No equivalent provision.
together with their families, in connection with the
construction, maintenance, or operation of the bases. EDCA
strictly adheres to the limits under the VFA. It is mutually agreed that
the United States
 1,000 hectares San Miguel Naval Communication
shall have the right to
establish on bases, free of all
licenses; fees; sales, excise or 750 hectares Radio Transmitter in Capas, Tarlac
other taxes, or
imposts; Government 900 hectares Radio Bigot Annex at Bamban, Tarlac 329
agencies, including
concessions, such as sales The Bases Conversion and Development Act of 1992
commissaries and post described its coverage in its Declaration of Policies:
exchanges; messes and
social clubs, for the exclusive
use of the United States Sec. 2.Declaration of Policies. - It is hereby declared the policy
military forces and authorized of the Government to accelerate the sound and balanced
civilian personnel and their conversion into alternative productive uses of the Clark and
families. The merchandise or Subic military reservations and their extensions (John Hay
services sold or dispensed by Station, Wallace Air Station, O'Donnell Transmitter Station, San
such agencies shall be free of Miguel Naval Communications Station and Capas Relay
all taxes, duties and Station), to raise funds by the sale of portions of Metro Manila
inspection by the Philippine military camps, and to apply said funds as provided herein for
authorities. Administrative the development and conversion to productive civilian use of
measures shall be taken by the lands covered under the 194 7 Military Bases Agreement
the appropriate authorities of between the Philippines and the United States of America, as
the United States to prevent amended.330
the resale of goods which are
sold under the provisions of The result of the debates and subsequent voting is Section 25,
this Article to persons not Article XVIII of the Constitution, which specifically restricts,
entitled to buy goods at such among others, foreign military facilities or bases. At the time of
agencies and, generally, to its crafting of the Constitution, the 1986 Constitutional
prevent abuse of the Commission had a clear idea of what exactly it was restricting.
privileges granted under this While the term "facilities and bases" was left undefined, its
Article. There shall be point of reference was clearly those areas covered by the
cooperation between such 1947 MBA as amended.
authorities and the Philippines
to this end. Notably, nearly 30 years have passed since then, and the
ever-evolving world of military technology and geopolitics has
surpassed the understanding of the Philippine people in 1986.
In sum, EDCA is a far cry from a basing agreement as was The last direct military action of the U.S. in the region was the
understood by the people at the time that the 1987 use of Subic base as the staging ground for Desert Shield and
Constitution was adopted. Desert Storm during the Gulf War.331In 1991, the Philippine
Senate rejected the successor treaty of the 1947 MBA that
Nevertheless, a comprehensive review of what the would have allowed the continuation of U.S. bases in the
Constitution means by "foreign military bases" and "facilities" is Philippines.
required before EDCA can be deemed to have passed
judicial scrutiny. Henceforth, any proposed entry of U.S. forces into the
Philippines had to evolve likewise, taking into consideration the
c. The meaning of military facilities and bases subsisting agreements between both parties, the rejection of
the 1991 proposal, and a concrete understanding of what was
An appreciation of what a military base is, as understood by constitutionally restricted. This trend birthed the VFA which, as
the Filipino people in 1987, would be vital in determining discussed, has already been upheld by this Court.
whether EDCA breached the constitutional restriction.
The latest agreement is EDCA, which proposes a novel
Prior to the drafting of the 1987 Constitution, the last definition concept termed "Agreed Locations."
of "military base" was provided under Presidential Decree No.
(PD) 1227.328 Unlawful entry into a military base is punishable By definition, Agreed Locations are
under the decree as supported by Article 281 of the Revised
Penal Code, which itself prohibits the act of trespass. facilities and areas that are provided by the Government of
the Philippines through the AFP and that United States forces,
Section 2 of the law defines the term in this manner: "'[M]ilitary United States contractors, and others as mutually agreed, shall
base' as used in this decree means any military, air, naval, or have the right to access and use pursuant to this Agreement.
coast guard reservation, base, fort, camp, arsenal, yard, Such Agreed Locations may be listed in an annex to be
station, or installation in the Philippines." appended to this Agreement, and may be further described
in implementing arrangements.332
Commissioner Tadeo, in presenting his objections to U.S.
presence in the Philippines before the 1986 Constitutional Preliminarily, respondent already claims that the proviso that
Commission, listed the areas that he considered as military the Philippines shall retain ownership of and title to the Agreed
bases: Locations means that EDCA is "consistent with Article II of the
VFA which recognizes Philippine sovereignty and jurisdiction
1,000 hectares Camp O'Donnel over locations within Philippine territory.333

20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
By this interpretation, respondent acknowledges that the
contention of petitioners springs from an understanding that
the Agreed Locations merely circumvent the constitutional
restrictions. Framed differently, the bone of contention is
whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers
Section 25, Article XVIII, and makes Senate concurrence a sine
qua non.

15,000 hectares Subic Naval Base Article III of EDCA provides for Agreed Locations, in which the
U.S. is authorized by the Philippines to "conduct the following
activities: "training; transit; support and related activities;
refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying
forces and materiel; and such other activities as the Parties
may agree."
This creation of EDCA must then be tested against a proper
interpretation of the Section 25 restriction.
d. Reasons for the constitutional requirements and legal
standards for constitutionally compatible military bases and
facilities
Section 25 does not define what is meant by a "foreign military
facility or base." While it specifically alludes to U.S. military
facilities and bases that existed during the framing of the
Constitution, the provision was clearly meant to apply to those
bases existing at the time and to any future facility or base.
The basis for the restriction must first be deduced from the spirit
of the law, in order to set a standard for the application of its
text, given the particular historical events preceding the
agreement.
Once more, we must look to the 1986 Constitutional
Commissioners to glean, from their collective wisdom, the
intent of Section 25. Their speeches are rich with history and
wisdom and present a clear picture of what they considered
in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption
of the anti-bases provisions with what purports to be an
objective presentation of the historical background of the
military bases in the Philippines. Care appears, however, to
have been taken to underscore the inequity in their inception
as well as their implementation, as to seriously reflect on the
supposed objectivity of the report. Pronouncements of military
and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the
implication is that the same remains valid today, as if the world
and international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the
presence of the military bases on our sovereignty - whether in
its legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be
fully sovereign or completely independent. I was not aware
that the concepts of sovereignty and independence have
now assumed the totality principle, such that a willing
assumption of some delimitations in the exercise of some
aspects thereof would put that State in a lower bracket of
nationhood.
xxxx
We have been receiving a continuous influx of materials on
the pros and cons on the advisability of having military bases
within our shores. Most of us who, only about three months
ago, were just mulling the prospects of these varying
contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent
implications of the military bases but also on their political,
social, economic and cultural impact on our national life. We
are asked to answer a plethora of questions, such as: 1)
whether the bases are magnets of nuclear attack or are
deterrents to such attack; 2) whether an alliance or mutual
defense treaty is a derogation of our national sovereignty; 3)
whether criticism of us by Russia, Vietnam and North Korea is
outweighed by the support for us of the ASEAN countries, the
United States, South Korea, Taiwan, Australia and New
Zealand; and 4) whether the social, moral and legal problems
spawned by the military bases and their operations can be
compensated by the economic benefits outlined in papers
which have been furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical,
unequivocal and forceful assertions of their positions. They are
entitled to the luxury of the absolutes. We are urged now to
adopt the proposed declaration as a "golden," "unique" and
"last" opportunity for Filipinos to assert their sovereign
rights. Unfortunately, I have never been enchanted by
superlatives, much less for the applause of the moment or the
ovation of the hour. Nor do I look forward to any glorious
summer after a winter of political discontent. Hence, if I may
join Commissioner Laurel, I also invoke a caveat not only
against the tyranny of labels but also the tyranny of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the
resolution of the problem of the removal of foreign bases from
the Philippines have been adequately treated by previous
speakers. Let me, therefore, just recapitulate the arguments
adduced in favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own
destiny without outside interference;
2. That no lasting peace and no true
sovereignty would ever be achieved so long as there
are foreign military forces in our country;
3. That the presence of foreign military bases deprives
us of the very substance of national sovereigntyand
this is a constant source of national embarrassment
and an insult to our national dignity and selfrespect as
a nation;
4. That these foreign military bases unnecessarily
expose our country to devastating nuclear attacks;
5. That these foreign military bases create social
problems and are designed to perpetuate the
strangle-hold of United States interests in our national
economy and development;
6. That the extraterritorial rights enjoyed by these
foreign bases operate to deprive our country of
jurisdiction over civil and criminal offenses committed
within our own national territory and against Filipinos;
7. That the bases agreements are colonial
impositions and dictations upon our helpless country;
and
8. That on the legal viewpoint and in the ultimate
analysis, all the bases agreements are null and
void ab initio, especially because they did not count
the sovereign consent and will of the Filipino
people.338
xxxx
In the real sense, Madam President, if we in the Commission
could accommodate the provisions I have cited, what is our
objection to include in our Constitution a matter as priceless as
the nationalist values we cherish? A matter of the gravest
concern for the safety and survival of this nation indeed
deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-
respect as a nation and the future of generations to come
with thirty pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear
weapons wherever they are found and whoever owns them is
that those are for killing people or for terrorizing humanity. This
objective by itself at any point in history is morally repugnant.
This alone is reason enough for us to constitutionalize the ban
on foreign military bases and on nuclear weapons.341
SPEECH OF COMMISSIONER BACANI 342
xxxx
x x x Hence, the remedy to prostitution does not seem to be
primarily to remove the bases because even if the bases are
removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies
primarily elsewhere - in an alert and concerned citizenry, a
healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of
foreign military bases here is that they impair portions of our
sovereignty. While I agree that our country's sovereignty
should not be impaired, I also hold the view that there are
times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this
effect. Thus, during World War II, England leased its bases in
the West Indies and in Bermuda for 99 years to the United
States for its use as naval and air bases. It was done in
consideration of 50 overaged destroyers which the United
States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to
the United States for the latter's use as a naval base in the
Indian Ocean. About the same time, the United States
obtained bases in Spain, Egypt and Israel. In doing so, these
countries, in effect, contributed to the launching of a
preventive defense posture against possible trouble in the
Middle East and in the Indian Ocean for their own
protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian
nations, the presence of American troops in the country is a
projection of America's security interest. Enrile said that
nonetheless, they also serve, although in an incidental and
secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission,
namely: It is ideal for us as an independent and sovereign
nation to ultimately abrogate the RP-US military treaty and, at
the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of
American military bases in the Philippines provided that such
an extension from one period to another shall be concluded
upon concurrence of the parties, and such extension shall be
based on justice, the historical amity of the people of the
Philippines and the United States and their common defense
interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started
with this task of framing a constitution, I read a statement of
President Aquino to the effect that she is for the removal of the
U.S. military bases in this country but that the removal of the
U.S. military bases should not be done just to give way to other
foreign bases. Today, there are two world superpowers, both
vying to control any and all countries which have importance
to their strategy for world domination. The Philippines is one
such country.
Madam President, I submit that I am one of those ready to
completely remove any vestiges of the days of enslavement,
but not prepared to erase them if to do so would merely leave
a vacuum to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today.
Consider our brethren in the Middle East, in Indo-China,
Central America, in South Africa - there has been escalation of
war in some of these areas because of foreign intervention
which views these conflicts through the narrow prism of the
East-West conflict. The United States bases have been used as
springboards for intervention in some of these conflicts. We
should not allow ourselves to be party to the warlike mentality
of these foreign interventionists. We must always be on the side
of peace – this means that we should not always rely on
military solution.352
xxxx
x x x The United States bases, therefore, are springboards for
intervention in our own internal affairs and in the affairs of other
nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should
safeguard its fundamental freedoms which should logically be
declared in black and white in our fundamental law of the
land - the Constitution. Let us express our desire for national
sovereignty so we may be able to achieve national self-
determination. Let us express our desire for neutrality so that
we may be able to follow active nonaligned independent
foreign policies. Let us express our desire for peace and a
nuclear-free zone so we may be able to pursue a healthy and
tranquil existence, to have peace that is autonomous and not
imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military
bases? Para sa magbubukid, ang kahulugan nito ay
pagkaalipin. Para sa magbubukid, ang pananatili ng U.S.
military bases ay tinik sa dibdib ng sambayanang Pilipinong
patuloy na nakabaon. Para sa sambayanang magbubukid,
ang ibig sabihin ng U.S. military bases ay batong pabigat na
patuloy na pinapasan ng sambayanang Pilipino. Para sa
sambayanang magbubukid, ang pananatili ng U.S. military
bases ay isang nagdudumilat na katotohanan ng patuloy na
paggahasa ng imperyalistang Estados Unidos sa ating Inang
Bayan - economically, politically and culturally. Para sa
sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa
sambayanang magbubukid, ang kahulugan ng U.S. military
bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves
from the instruments of domination and subservience has
clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare
my support for the committee's position to enshrine in the
Constitution a fundamental principle forbidding foreign military
bases, troops or facilities in any part of the Philippine territory
as a clear and concrete manifestation of our inherent right to
national self-determination, independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes
of genuine nationhood to the social cost of allowing foreign
countries to maintain military bases in our country. Previous
speakers have dwelt on this subject, either to highlight its
importance in relation to the other issues or to gloss over its
significance and !llake this a part of future negotiations.357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is
one of the solutions and is the response of the Filipino people
against this condition and other conditions that have already
been clearly and emphatically discussed in past deliberations.
The deletion, therefore, of Section 3 in the Constitution we are
drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively
respond to the continuing violation of our territorial integrity via
the military bases agreement which permits the retention of
U.S. facilities within the Philippine soil over which our authorities
have no exclusive jurisdiction contrary to the accepted
definition of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission,
to an exception in the application of a provision in the Bill of
Rights that we have just drafted regarding equal application
of the laws of the land to all inhabitants, permanent or
otherwise, within its territorial boundaries.
Third, the continued exercise by the United States of
extraterritoriality despite the condemnations of such practice
by the world community of nations in the light of
overwhelming international approval of eradicating all
vestiges of colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic
sovereignty, in the hope that such can be wielded to force
the United States government to concede to better terms and
conditions concerning the military bases agreement, including
the transfer of complete control to the Philippine government
of the U.S. facilities, while in the meantime we have to suffer all
existing indignities and disrespect towards our rights as a
sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign
military bases as essentially a question of sovereignty which
does not require in-depth studies or analyses and which this
forum has, as a constituent assembly drafting a constitution,
the expertise and capacity to decide on except that it lacks
the political will that brought it to existence and now engages
in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our
country, if we reclaim, restore, uphold and defend our
national sovereignty. National sovereignty is what the military
bases issue is all about. It is only the sovereign people
exercising their national sovereignty who can design an
independent course and take full control of their national
destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee
report, specifically Sections 3 and 4 on neutrality, nuclear and
bases-free country, some views stress sovereignty of the
Republic and even invoke survival of the Filipino nation and
people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the
provisions of the committee report to dismantle the American
bases after 1991 only show the urgent need to free our country
from the entangling alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess
expertise to know that the so-called RP-US Bases Agreement
will expire in 1991, that it infringes on our sovereignty and
jurisdiction as well as national dignity and honor, that it goes
against the UN policy of disarmament and that it
constitutes unjust intervention in our internal
affairs.364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow
foreign military bases, troops, or facilities, subject to the
provisions of Section 25. It is thus important to read its
discussions carefully. From these discussions, we can deduce
three legal standards that were articulated by the
Constitutional Commission Members. These are characteristics
of any agreement that the country, and by extension this
Court, must ensure are observed. We can thereby determine
whether a military base or facility in the Philippines, which
houses or is accessed by foreign military troops, is foreign or
remains a Philippine military base or facility. The legal
standards we find applicable are: independence from foreign
control, sovereignty and applicable law, and national security
and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the
time of the Constitution's drafting was aimed at asserting
Philippine independence from the U.S., as well as control over
our country's territory and military.
Under the Civil Code, there are several aspects of control
exercised over property.
Property is classified as private or public.365 It is public if
"intended for public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character[,]" or "[t]hose
which belong to the State, without being for public use, and
are intended for some public service or for the development
of the national wealth. "366
Quite clearly, the Agreed Locations are contained within a
property for public use, be it within a government military
camp or property that belongs to the Philippines.1avvphi1
Once ownership is established, then the rights of ownership
flow freely. Article 428 of the Civil Code provides that "[t]he
owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law." Moreover, the
owner "has also a right of action against the holder and
possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the
owner of property, even against those who hold the property.
Possession, after all, merely raises a disputable presumption of
ownership, which can be contested through normal judicial
processes.367
In this case, EDCA explicitly provides that ownership of the
Agreed Locations remains with the Philippine
govemment.368 What U.S. personnel have a right to, pending
mutual agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use
is consistent with the Civil Code, since the owner may dispose
of the property in whatever way deemed fit, subject to the
limits of the law. So long as the right of ownership itself is not
transferred, then whatever rights are transmitted by
agreement does not completely divest the owner of the rights
over the property, but may only limit them in accordance with
law.
Hence, even control over the property is something that an
owner may transmit freely. This act does not translate into the
full transfer of ownership, but only of certain rights. In Roman
Catholic Apostolic Administrator of Davao, Inc. v. Land
Registration Commission, we stated that the constitutional
proscription on property ownership is not violated despite the
foreign national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is
essentially a contract of use and access. Under its pertinent
provisions, it is the Designated Authority of the Philippines that
shall, when requested, assist in facilitating transit or access to
public land and facilities.371 The activities carried out within
these locations are subject to agreement as authorized by the
Philippine govemment.372 Granting the U.S. operational control
over these locations is likewise subject to EDCA' s security
mechanisms, which are bilateral procedures involving
Philippine consent and cooperation.373 Finally, the Philippine
Designated Authority or a duly designated representative is
given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S.
control, which was so feared by the Constitutional
Commission. In fact, they seem to have been the product of
deliberate negotiation from the point of view of the Philippine
government, which balanced constitutional restrictions on
foreign military bases and facilities against the security needs
of the country. In the 1947 MBA, the U.S. forces had "the right,
power and authority x x x to construct (including dredging and
filling), operate, maintain, utilize, occupy, garrison and control
the bases."375 No similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of
foreign military facilities and bases has been raised by the
present Constitution. Section 25 is explicit that foreign military
bases, troops, or facilities shall not be allowed in the
Philippines, except under a treaty duly concurred in by the
Senate. Merely stating that the Philippines would retain
ownership would do violence to the constitutional requirement
if the Agreed Locations were simply to become a less obvious
manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the
Constitution, the committee rejected a specific provision
proposed by Commissioner Sarmiento. The discussion
illuminates and provides context to the 1986 Constitutional
Commission's vision of control and independence from the
U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment
reads as follows: "THE STATE SHALL ESTABLISH AND MAINTAIN AN
INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES." Allow me to briefly explain, Madam President. The
Armed Forces of the Philippines is a vital component of
Philippine society depending upon its training, orientation and
support. It will either be the people's protector or a staunch
supporter of a usurper or tyrant, local and foreign interest. The
Armed Forces of the Philippines' past and recent experience
shows it has never been independent and self-reliant. Facts,
data and statistics will show that it has been substantially
dependent upon a foreign power. In March 1968,
Congressman Barbero, himself a member of the Armed Forces
of the Philippines, revealed top secret documents showing
what he described as U.S. dictation over the affairs of the
Armed Forces of the Philippines. He showed that under existing
arrangements, the United States unilaterally determines not
only the types and quantity of arms and equipments that our
armed forces would have, but also the time when these items
are to be made available to us. It is clear, as he pointed out,
that the composition, capability and schedule of development
of the Armed Forces of the Philippines is under the effective
control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement
in the 1987 Constitution that would assert "independent" and
"self-reliant" armed forces. This proposal was rejected by the
committee, however. As Commissioner De Castro asserted,
the involvement of the Philippine military with the U.S. did not,
by itself, rob the Philippines of its real independence. He made
reference to the context of the times: that the limited
resources of the Philippines and the current insurgency at that
time necessitated a strong military relationship with the U.S. He
said that the U.S. would not in any way control the Philippine
military despite this relationship and the fact that the former
would furnish military hardware or extend military assistance
and training to our military. Rather, he claimed that the
proposal was in compliance with the treaties between the two
states.
MR. DE CASTRO: If the Commissioner will take note of my
speech on U.S. military bases on 12 September 1986, I spoke
on the selfreliance policy of the armed forces. However, due
to very limited resources, the only thing we could do is
manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the
Philippines for failure to provide the necessary funds to make
the Philippine Armed Forces self-reliant. Indeed that is a
beautiful dream. And I would like it that way. But as of this
time, fighting an insurgency case, a rebellion in our country -
insurgency - and with very limited funds and very limited
number of men, it will be quite impossible for the Philippines to
appropriate the necessary funds therefor. However, if we say
that the U.S. government is furnishing us the military hardware,
it is not control of our armed forces or of our government. It is
in compliance with the Mutual Defense Treaty. It is under the
military assistance program that it becomes the responsibility
of the United States to furnish us the necessary hardware in
connection with the military bases agreement. Please be
informed that there are three (3) treaties connected with the
military bases agreement; namely: the RP-US Military Bases
Agreement, the Mutual Defense Treaty and the Military
Assistance Program.
My dear Commissioner, when we enter into a treaty and we
are furnished the military hardware pursuant to that treaty, it is
not in control of our armed forces nor control of our
government. True indeed, we have military officers trained in
the U.S. armed forces school. This is part of our Military
Assistance Program, but it does not mean that the minds of
our military officers are for the U.S. government, no. I am one
of those who took four courses in the United States schools, but
I assure you, my mind is for the Filipino people. Also, while we
are sending military officers to train or to study in U.S. military
schools, we are also sending our officers to study in other
military schools such as in Australia, England and in Paris. So, it
does not mean that when we send military officers to United
States schools or to other military schools, we will be under the
control of that country. We also have foreign officers in our
schools, we in the Command and General Staff College in Fort
Bonifacio and in our National Defense College, also in Fort
Bonifacio.377 (Emphases supplied)
This logic was accepted in Tañada v. Angara, in which the
Court ruled that independence does not mean the absence
of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and
independent national economy" does not necessarily rule out
the entry of foreign investments, goods and services. It
contemplates neither "economic seclusion" nor "mendicancy
in the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional
policy:
Economic self reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in
the development of natural resources and public
utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military
facilities and bases is therefore the assertion of independence
from the U.S. and other foreign powers, as independence is
exhibited by the degree of foreign control exerted over these
areas.1âwphi1 The essence of that independence is self-
governance and self-control.379 Independence itself is "[t]he
state or condition of being free from dependence, subjection,
or control. "380
Petitioners assert that EDCA provides the U.S. extensive control
and authority over Philippine facilities and locations, such that
the agreement effectively violates Section 25 of the 1987
Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act
as necessary for "operational control and defense." The term
"operational control" has led petitioners to regard U.S. control
over the Agreed Locations as unqualified and, therefore,
total.382 Petitioners contend that the word "their" refers to the
subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and
authorities within Agreed Locations that are necessary for their
operational control or defense, including taking appropriate
measure to protect United States forces and United States
contractors. The United States should coordinate such
measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their,"
as understood above, is a possessive pronoun for the subject
"they," a third-person personal pronoun in plural form. Thus,
"their" cannot be used for a non-personal subject such as
"Agreed Locations." The simple grammatical conclusion is that
"their" refers to the previous third-person plural noun, which is
"United States forces." This conclusion is in line with the
definition of operational control.
a. U.S. operational control as the exercise of authority over U.S.
personnel, and not over the Agreed Locations
Operational control, as cited by both petitioner and
respondents, is a military term referring to
[t]he authority to perform those functions of command over
subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating objective,
and giving authoritative direction necessary to accomplish the
mission.383
At times, though, operational control can mean something
slightly different. In JUSMAG Philippines v. National Labor
Relations Commission, the Memorandum of Agreement
between the AFP and JUSMAG Philippines defined the term as
follows:384
The term "Operational Control" includes, but is not limited to, all
personnel administrative actions, such as: hiring
recommendations; firing recommendations; position
classification; discipline; nomination and approval of incentive
awards; and payroll computation.
Clearly, traditional standards define "operational control" as
personnel control. Philippine law, for instance, deems
operational control as one exercised by police officers and
civilian authorities over their subordinates and is distinct from
the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises
operational control over the police within the municipal
government,386 just as city mayor possesses the same power
over the police within the city government.387
Thus, the legal concept of operational control involves
authority over personnel in a commander-subordinate
relationship and does not include control over the Agreed
Locations in this particular case. Though not necessarily stated
in EDCA provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to protect
United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have
operational control over its own forces, in much the same way
that the Philippines exercises operational control over its own
units.
For actual operations, EDCA is clear that any activity must be
planned and pre-approved by the MDB-SEB.388 This provision
evinces the partnership aspect of EDCA, such that both
stakeholders have a say on how its provisions should be put
into effect.
b. Operational control vis-à-vis effective command and
control
Petitioners assert that beyond the concept of operational
control over personnel, qualifying access to the Agreed
Locations by the Philippine Designated Authority with the
phrase "consistent with operational safety and security
requirements in accordance with agreed procedures
developed by the Parties" leads to the conclusion that the U.S.
exercises effective control over the Agreed Locations.389 They
claim that if the Philippines exercises possession of and control
over a given area, its representative should not have to be
authorized by a special provision.390
For these reasons, petitioners argue that the "operational
control" in EDCA is the "effective command and control" in the
1947 MBA.391 In their Memorandum, they distinguish effective
command and control from operational control in U.S.
parlance.392 Citing the Doctrine for the Armed Forces of the
United States, Joint Publication 1, "command and control (C2)"
is defined as "the exercise of authority and direction by a
properly designated commander over assigned and attached
forces in the accomplishment of the mission x x
x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the
composition of subordinate forces, the assignment of tasks,
the designation of objectives, the overall control of assigned
resources, and the full authoritative direction necessary to
accomplish the mission."394
Two things demonstrate the errors in petitioners' line of
argument.
Firstly, the phrase "consistent with operational safety and
security requirements in accordance with agreed procedures
developed by the Parties" does not add any qualification
beyond that which is already imposed by existing treaties. To
recall, EDCA is based upon prior treaties, namely the VFA and
the MDT.395 Treaties are in themselves contracts from which
rights and obligations may be claimed or waived.396 In this
particular case, the Philippines has already agreed to abide
by the security mechanisms that have long been in place
between the U.S. and the Philippines based on the
implementation of their treaty relations.397
Secondly, the full document cited by petitioners contradicts
the equation of "operational control" with "effective command
and control," since it defines the terms quite differently, viz:398
Command and control encompasses the exercise of
authority, responsibility, and direction by a commander over
assigned and attached forces to accomplish the mission.
Command at all levels is the art of motivating and directing
people and organizations into action to accomplish missions.
Control is inherent in command. To control is to manage and
direct forces and functions consistent with a commander's
command authority. Control of forces and functions helps
commanders and staffs compute requirements, allocate
means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of
tenets, organization, and processes for effective C2 is
provided in Section B, "Command and Control of Joint Forces,"
of Chapter V "Joint Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than
COCOM. It is the authority to perform those functions of
command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating
objectives, and giving authoritative direction over all aspects
of military operations and joint training necessary to
accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations;
normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON
provides authority to organize and employ commands and
forces as the commander considers necessary to accomplish
assigned missions. It does not include authoritative direction for
logistics or matters of administration, discipline, internal
organization, or unit training. These elements of COCOM must
be specifically delegated by the CCDR. OPCON does include
the authority to delineate functional responsibilities and
operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of
combatant command, while command and control is the
overall power and responsibility exercised by the commander
with reference to a mission. Operational control is a narrower
power and must be given, while command and control is
plenary and vested in a commander. Operational control
does not include the planning, programming, budgeting, and
execution process input; the assignment of subordinate
commanders; the building of relationships with Department of
Defense agencies; or the directive authority for logistics,
whereas these factors are included in the concept of
command and control.400
This distinction, found in the same document cited by
petitioners, destroys the very foundation of the arguments they
have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only
for construction activitites
As petitioners assert, EDCA indeed contains a specific
provision that gives to the U.S. operational control within the
Agreed Locations during construction activities.401 This exercise
of operational control is premised upon the approval by the
MDB and the SEB of the construction activity through
consultation and mutual agreement on the requirements and
standards of the construction, alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be
emphasized that the grant is only for construction activities.
The narrow and limited instance wherein the U.S. is given
operational control within an Agreed Location cannot be
equated with foreign military control, which is so abhorred by
the Constitution.
The clear import of the provision is that in the absence of
construction activities, operational control over the Agreed
Location is vested in the Philippine authorities. This meaning is
implicit in the specific grant of operational control only during
construction activities. The principle of constitutional
construction, "expressio unius est exclusio alterius," means the
failure to mention the thing becomes the ground for inferring
that it was deliberately excluded.403Following this construction,
since EDCA mentions the existence of U.S. operational control
over the Agreed Locations for construction activities, then it is
quite logical to conclude that it is not exercised over other
activities.
Limited control does not violate the Constitution. The fear of
the commissioners was total control, to the point that the
foreign military forces might dictate the terms of their acts
within the Philippines.404 More important, limited control does
not mean an abdication or derogation of Philippine
sovereignty and legal jurisdiction over the Agreed Locations. It
is more akin to the extension of diplomatic courtesies and
rights to diplomatic agents,405 which is a waiver of control on a
limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the
framers of the Constitution: that the Philippines must retain
sovereignty and jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United
States not to establish a permanent military presence or base
in the territory of the Philippines." Further on, it likewise states
the recognition that "all United States access to and use of
facilities and areas will be at the invitation of the Philippines
and with full respect for the Philippine Constitution and
Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines
must be seen in light of Philippine sovereignty and jurisdiction
over the Agreed Locations.
Sovereignty is the possession of sovereign power,406 while
jurisdiction is the conferment by law of power and authority to
apply the law.407 Article I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines. (Emphasis
supplied)
From the text of EDCA itself, Agreed Locations are territories of
the Philippines that the U.S. forces are allowed to access and
use.408 By withholding ownership of these areas and retaining
unrestricted access to them, the government asserts
sovereignty over its territory. That sovereignty exists so long as
the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for
security with respect to the Agreed Locations.410Hence,
Philippine law remains in force therein, and it cannot be said
that jurisdiction has been transferred to the U.S. Even the
previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with
Philippine authorities.411
Jurisprudence bears out the fact that even under the former
legal regime of the MBA, Philippine laws continue to be in
force within the bases.412 The difference between then and
now is that EDCA retains the primary jurisdiction of the
Philippines over the security of the Agreed Locations, an
important provision that gives it actual control over those
locations. Previously, it was the provost marshal of the U.S. who
kept the peace and enforced Philippine law in the bases. In
this instance, Philippine forces act as peace officers, in stark
contrast to the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial
integrity
The last standard this Court must set is that the EDCA provisions
on the Agreed Locations must not impair or threaten the
national security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the
evolution of technology has essentially rendered the prior
notion of permanent military bases obsolete.
Moreover, military bases established within the territory of
another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as
nuclear weapons, guided missiles as well as huge sea vessels
that can stay afloat in the sea even for months and years
without returning to their home country. These military warships
are actually used as substitutes for a land-home base not only
of military aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a
limited scope. It does not allow, for instance, the re-
establishment of the Subic military base or the Clark Air Field as
U.S. military reservations. In this context, therefore, this Court
has interpreted the restrictions on foreign bases, troops, or
facilities as three independent restrictions. In accord with this
interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to
define what a military base is.415 While the source is not
authoritative, petitioners make the point that the Agreed
Locations, by granting access and use to U.S. forces and
contractors, are U.S. bases under a different name.416 More
important, they claim that the Agreed Locations invite
instances of attack on the Philippines from enemies of the
U.S.417
We believe that the raised fear of an attack on the Philippines
is not in the realm of law, but of politics and policy. At the very
least, we can say that under international law, EDCA does not
provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the
Agreed Locations simply because of the presence of U.S.
personnel. Article 2(4) of the United Nations Charter states that
"All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations." 418 Any
unlawful attack on the Philippines breaches the treaty, and
triggers Article 51 of the same charter, which guarantees the
inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in
question, international humanitarian law standards prevent
participants in an armed conflict from targeting non-
participants. International humanitarian law, which is the
branch of international law applicable to armed conflict,
expressly limits allowable military conduct exhibited by forces
of a participant in an armed conflict.419 Under this legal
regime, participants to an armed conflict are held to specific
standards of conduct that require them to distinguish between
combatants and non-combatants,420 as embodied by the
Geneva Conventions and their Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of
international law at the University of Leicester, noted that there
is no legal consensus for what constitutes a base, as opposed
to other terms such as "facilities" or "installation."422 In strategic
literature, "base" is defined as an installation "over which the
user State has a right to exclusive control in an extraterritorial
sense."423 Since this definition would exclude most foreign
military installations, a more important distinction must be
made.
For Woodcliffe, a type of installation excluded from the
definition of "base" is one that does not fulfill a combat role. He
cites an example of the use of the territory of a state for
training purposes, such as to obtain experience in local
geography and climactic conditions or to carry out joint
exercises.424 Another example given is an advanced
communications technology installation for purposes of
information gathering and communication.425 Unsurprisingly,
he deems these non-combat uses as borderline situations that
would be excluded from the functional understanding of
military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the
status of a building or person is presumed to be protected,
unless proven otherwise.427 Moreover, the principle of
distinction requires combatants in an armed conflict to
distinguish between lawful targets428 and protected
targets. In an actual armed conflict between the U.S. and a
429
third state, the Agreed Locations cannot be considered U.S.
territory, since ownership of territory even in times of armed
conflict does not change.430
Hence, any armed attack by forces of a third state against an
Agreed Location can only be legitimate under international
humanitarian law if it is against a bona fide U.S. military base,
facility, or installation that directly contributes to the military
effort of the U.S. Moreover, the third state's forces must take all
measures to ensure that they have complied with the principle
of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under
international law that would ensure its territorial integrity and
national security in the event an Agreed Location is subjected
to attack. As EDCA stands, it does not create the situation so
feared by petitioners - one in which the Philippines, while not
participating in an armed conflict, would be legitimately
targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom
of allowing the presence of U.S. personnel within our territory
and is therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to
"agreed" locations, areas, or facilities within the military base of
another sovereign state is nothing new on the international
plane. In fact, this arrangement has been used as the
framework for several defense cooperation agreements, such
as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation
Agreement432
2. 2009 U.S.-Colombia Defense Cooperation
Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense
Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces
access to their military bases.437 That access is without rental or
similar costs to the U.S.438 Further, U.S. forces are allowed to
undertake construction activities in, and make alterations and
improvements to, the agreed locations, facilities, or
areas.439 As in EDCA, the host states retain ownership and
jurisdiction over the said bases.440
In fact, some of the host states in these agreements give
specific military-related rights to the U.S. For example, under
Article IV(l) of the US.-Bulgaria Defense Cooperation
Agreement, "the United States forces x x x are authorized
access to and may use agreed facilities and areas x x x for
staging and deploying of forces and materiel, with the
purpose of conducting x x x contingency operations and
other missions, including those undertaken in the framework of
the North Atlantic Treaty." In some of these agreements, host
countries allow U.S. forces to construct facilities for the latter’s
exclusive use.441
Troop billeting, including construction of temporary structures,
is nothing new. In Lim v. Executive Secretary, the Court already
upheld the Terms of Reference of Balikatan 02-1, which
authorized U.S. forces to set up "[t]emporary structures such as
those for troop billeting, classroom instruction and messing x x x
during the Exercise." Similar provisions are also in the Mutual
Logistics Support Agreement of 2002 and 2007, which are
essentially executive agreements that implement the VFA, the
MDT, and the 1953 Military Assistance Agreement. These
executive agreements similarly tackle the "reciprocal provision
of logistic support, supplies, and services,"442 which include "[b
]illeting, x x x operations support (and construction and use of
temporary structures incident to operations support), training
services, x x x storage services, x x x during an approved
activity."443 These logistic supplies, support, and services
include temporary use of "nonlethal items of military
equipment which are not designated as significant military
equipment on the U.S. Munitions List, during an approved
activity."444 The first Mutual Logistics Support Agreement has
lapsed, while the second one has been extended until 2017
without any formal objection before this Court from the Senate
or any of its members.
The provisions in EDCA dealing with Agreed Locations are
analogous to those in the aforementioned executive
agreements. Instead of authorizing the building of temporary
structures as previous agreements have done, EDCA
authorizes the U.S. to build permanent structures or alter or
improve existing ones for, and to be owned by, the
Philippines.445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly
constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to
use facilities and areas for "training; x x x; support and related
activities; x x x; temporary accommodation of personnel;
communications" and agreed activities.447
Concerns on national security problems that arise from foreign
military equipment being present in the Philippines must
likewise be contextualized. Most significantly, the VFA already
authorizes the presence of U.S. military equipment in the
country. Article VII of the VFA already authorizes the U.S. to
import into or acquire in the Philippines "equipment, materials,
supplies, and other property" that will be used "in connection
with activities" contemplated therein. The same section also
recognizes that "[t]itle to such property shall remain" with the
US and that they have the discretion to "remove such property
from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of "defense equipment, supplies,
and materiel,"448 since these are sanctioned in the VFA. In fact,
the two countries have already entered into various
implementing agreements in the past that are comparable to
the present one. The Balikatan 02-1 Terms of Reference
mentioned in Lim v. Executive Secretary specifically recognizes
that Philippine and U.S. forces "may share x x x in the use of
their resources, equipment and other assets." Both the 2002
and 2007 Mutual Logistics Support Agreements speak of the
provision of support and services, including the "construction
and use of temporary structures incident to operations
support" and "storage services" during approved
activities.449 These logistic supplies, support, and services
include the "temporary use of x x x nonlethal items of military
equipment which are not designated as significant military
equipment on the U.S. Munitions List, during an approved
activity."450Those activities include "combined exercises and
training, operations and other deployments" and "cooperative
efforts, such as humanitarian assistance, disaster relief and
rescue operations, and maritime anti-pollution operations"
within or outside Philippine territory.451 Under EDCA, the
equipment, supplies, and materiel that will be prepositioned at
Agreed Locations include "humanitarian assistance and
disaster relief equipment, supplies, and materiel. "452 Nuclear
weapons are specifically excluded from the materiel that will
be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it
increases the threat to our national security. If anything, EDCA
increases the likelihood that, in an event requiring a defensive
response, the Philippines will be prepared alongside the U.S. to
defend its islands and insure its territorial integrity pursuant to a
relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the
language of the MDT only refers to mutual help and defense in
the Pacific area.453 We believe that any discussion of the
activities to be undertaken under EDCA vis-a-vis the defense
of areas beyond the Pacific is premature. We note that a
proper petition on that issue must be filed before we rule
thereon. We also note that none of the petitions or
memoranda has attempted to discuss this issue, except only
to theorize that the U.S. will not come to our aid in the event of
an attack outside of the Pacific. This is a matter of policy and is
beyond the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to
say that the initial impression of the facility adverted to does
appear to be one of those that require a public franchise by
way of congressional action under Section 11, Article XII of the
Constitution. As respondents submit, however, the system
referred to in the agreement does not provide
telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the
telecommunication system is solely for the use of the U.S. and
not the public in general, and that this system will not interfere
with that which local operators use. Consequently, a public
franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons
within Philippine territory is entirely speculative. It is noteworthy
that the agreement in fact specifies that the prepositioned
materiel shall not include nuclear weapons.455Petitioners argue
that only prepositioned nuclear weapons are prohibited by
EDCA; and that, therefore, the U.S. would insidiously bring
nuclear weapons to Philippine territory.456 The general
prohibition on nuclear weapons, whether prepositioned or not,
is already expressed in the 1987 Constitution.457 It would be
unnecessary or superfluous to include all prohibitions already in
the Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption,
which under the law must originate from Congress. This
allegation ignores jurisprudence on the government's
assumption of tax liability. EDCA simply states that the taxes on
the use of water, electricity, and public utilities are for the
account of the Philippine Government.458 This provision
creates a situation in which a contracting party assumes the
tax liability of the other.459 In National Power Corporation v.
Province of Quezon, we distinguished between enforceable
and unenforceable stipulations on the assumption of tax
liability. Afterwards, we concluded that an enforceable
assumption of tax liability requires the party assuming the
liability to have actual interest in the property taxed.460 This rule
applies to EDCA, since the Philippine Government stands to
benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces,
disaster preparation, and the preferential use of Philippine
suppliers.461 Hence, the provision on the assumption of tax
liability does not constitute a tax exemption as petitioners
have posited.
Additional issues were raised by petitioners, all relating
principally to provisions already sufficiently addressed above.
This Court takes this occasion to emphasize that the
agreement has been construed herein as to absolutely
disauthorize the violation of the Constitution or any applicable
statute. On the contrary, the applicability of Philippine law is
explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so
zealously protested by noted personalities in Philippine history
arises not so much from xenophobia, but from a genuine
desire for self-determination, nationalism, and above all a
commitment to ensure the independence of the Philippine
Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the
President of the Philippines of his Constitutional prerogatives in
respect of foreign affairs. They cannot cripple him when he
deems that additional security measures are made necessary
by the times. As it stands, the Philippines through the
Department of Foreign Affairs has filed several diplomatic
protests against the actions of the People's Republic of China
in the West Philippine Sea;462 initiated arbitration against that
country under the United Nations Convention on the Law of
the Sea;463 is in the process of negotiations with the Moro
Islamic Liberation Front for peace in Southern
Philippines,464 which is the subject of a current case before this
Court; and faces increasing incidents of kidnappings of
Filipinos and foreigners allegedly by the Abu Sayyaf or the
New People's Army.465 The Philippine military is conducting
reforms that seek to ensure the security and safety of the
nation in the years to come.466 In the future, the Philippines
must navigate a world in which armed forces fight with
increasing sophistication in both strategy and technology,
while employing asymmetric warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the

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

That calamity brought out the best in the Filipinos as thousands

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

In order to keep the peace in its archipelago in this region of

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

As it is, EDCA is not constitutionally infirm. As an executive

agreement, it remains consistent with existing laws and treaties
that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.
 GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police
(PNP); Police Chief Superintendent RAUL CASTAÑEDA, Chief,
Criminal Investigation and Detection Group (CIDG); Police
Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-
Crime and Emergency Response (PACER); and GEN. JOEL R.
GOLTIAO, Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari 1 the decision
dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R.
AMPARO No. 00009.2 This CA decision confirmed the enforced
disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary
Jean B. Tagitis (respondent). The dispositive portion of the CA
decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED.
The Court hereby FINDS that this is an "enforced
disappearance" within the meaning of the United Nations
instruments, as used in the Amparo Rules. The privileges of the
writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,
Chief, Criminal Investigation and Detention Group (CIDG) who
should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM
PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE
TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO
A. ESPINA, Chief, Police Anti-Crime and Emergency Response,
to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect
the life, liberty and security of Engr. Morced Tagitis, but also to
extend the privileges of the writ of amparo to Engr. Morced
Tagitis and his family, and to submit a monthly report of their
actions to this Court, as a way of PERIODIC REVIEW to enable
this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT.
GEN. ALEXANDER YANO, Commanding General, Philippine
Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-
Terror Task Force Comet, Zamboanga City, both being with
the military, which is a separate and distinct organization from
the police and the CIDG, in terms of operations, chain of
command and budget.
This Decision reflects the nature of the Writ of Amparo – a
protective remedy against violations or threats of violation
against the rights to life, liberty and security.3 It embodies, as a
remedy, the court’s directive to police agencies to undertake
specified courses of action to address the disappearance of
an individual, in this case, Engr. Morced N. Tagitis. It does not
determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least
accountability, for the enforced disappearance for purposes
of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors
have been established by substantial evidence to have
participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to
those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to
the level of responsibility defined above; or who are imputed
with knowledge relating to the enforced disappearance and
who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance.
In all these cases, the issuance of the Writ of Amparo is justified
by our primary goal of addressing the disappearance, so that
the life of the victim is preserved and his liberty and security
are restored.
We highlight this nature of a Writ of Amparo case at the outset
to stress that the unique situations that call for the issuance of
the writ, as well as the considerations and measures necessary
to address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions
and proceedings. In this sense, the Rule on the Writ of
Amparo4 (Amparo Rule) issued by this Court is unique. The
Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and
jurisprudence and through the substantive laws that Congress
may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records
of the case, are summarized below.
The established facts show that Tagitis, a consultant for the
World Bank and the Senior Honorary Counselor for the Islamic
Development Bank (IDB) Scholarship Programme, was last
seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong),
an IDB scholar, Tagitis arrived in Jolo by boat in the early
morning of October 31, 2007 from a seminar in Zamboanga
City. They immediately checked-in at ASY Pension House.
Tagitis asked Kunnong to buy him a boat ticket for his return
trip the following day to Zamboanga. When Kunnong returned
from this errand, Tagitis was no longer around.5 The
receptionist related that Tagitis went out to buy food at
around 12:30 in the afternoon and even left his room key with
the desk.6 Kunnong looked for Tagitis and even sent a text
message to the latter’s Manila-based secretary who did not
know of Tagitis’ whereabouts and activities either; she advised
Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir
N. Matli, a UP professor of Muslim studies and Tagitis’ fellow
student counselor at the IDB, reported Tagitis’ disappearance
to the Jolo Police Station.8 On November 7, 2007, Kunnong
executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.9
More than a month later (on December 28, 2007), the
respondent filed a Petition for the Writ of Amparo (petition)
with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.10 The petition was directed against Lt. Gen. Alexander
Yano, Commanding General, Philippine Army; Gen. Avelino I.
Razon, Chief, Philippine National Police (PNP); Gen. Edgardo
M. Doromal, Chief, Criminal Investigation and Detention
Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-
Crime and Emergency Response; Gen. Joel Goltiao, Regional
Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-
Terror Task Force Comet [collectively referred to as petitioners].
After reciting Tagitis’ personal circumstances and the facts
outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of
the pension house to take his early lunch but while out on the
street, a couple of burly men believed to be police
intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the
knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day,
Kunnong returned to the pension house, and was surprised to
find out that subject Engr. Tagitis cannot [sic] be contacted by
phone and was not also around and his room was closed and
locked;
9. Kunnong requested for the key from the desk of the pension
house who [sic] assisted him to open the room of Engr. Tagitis,
where they discovered that the personal belongings of Engr.
Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former
sought the help of another IDB scholar and reported the
matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in
Jolo, exerted efforts in trying to locate the whereabouts of
Engr. Tagitis and when he reported the matter to the police
authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could have been abducted by the Abu
Sayyaf group and other groups known to be fighting against
the government;
12. Being scared with [sic] these suggestions and insinuations
of the police officers, Kunnong reported the matter to the
[respondent, wife of Engr. Tagitis] by phone and other
responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of
her co-employees with the Land Bank in Digos branch, Digos
City, Davao del Sur who likewise sought help from some of
their friends in the military who could help them find/locate
the whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any
positive results except the information from persons in the
military who do not want to be identified that Engr. Tagitis is in
the hands of the uniformed men;
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with
the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police
Station in the ARMM in Cotobato and in Jolo, as suggested by
her friends, seeking their help to find her husband, but
[respondent’s] request and pleadings failed to produce any
positive results;
18. Instead of helping the [respondent], she [sic] was told of an
intriguing tale by the police that her husband, subject of the
petition, was not missing but was with another woman having
good time somewhere, which is a clear indication of the
[petitioners’] refusal to help and provide police assistance in
locating her missing husband;
19. The continued failure and refusal of the [petitioners] to
release and/or turn-over subject Engr. Tagitis to his family or
even to provide truthful information to [the respondent] of the
subject’s whereabouts, and/or allow [the respondent] to visit
her husband Engr. Morced Tagitis, caused so much sleepless
nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have
been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the
different suggestions of these police officers, despite of which,
her efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized
with] the sufferings undergone by the [respondent], informed
her that they are not the proper persons that she should
approach, but assured her not to worry because her husband
is [sic] in good hands;
22. The unexplained uncooperative behavior of the
[petitioners] to the [respondent’s] request for help and failure
and refusal of the [petitioners] to extend the needed help,
support and assistance in locating the whereabouts of Engr.
Tagitis who had been declared missing since October 30, 2007
which is almost two (2) months now, clearly indicates that the
[petitioners] are actually in physical possession and custody of
[respondent’s] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues
and remedies but to no avail, and under the circumstances,
[the respondent] has no other plain, speedy and adequate
remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of the [petitioners],
their intelligence operatives and the like which are in total
violation of the subject’s human and constitutional rights,
except the issuance of a WRIT OF AMPARO. [Emphasis
supplied]
On the same day the petition was filed, the CA immediately
issued the Writ of Amparo, set the case for hearing on January
7, 2008, and directed the petitioners to file their verified return
within seventy-two (72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27,
2008, the petitioners denied any involvement in or knowledge
of Tagitis’ alleged abduction. They argued that the allegations
of the petition were incomplete and did not constitute a
cause of action against them; were baseless, or at best
speculative; and were merely based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to
the Return, stated that: he did not have any personal
knowledge of, or any participation in, the alleged
disappearance; that he had been designated by President
Gloria Macapagal Arroyo as the head of a special body
called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local
police, held case conferences, rendered legal advice in
connection to these cases; and gave the following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police
Regional Office ARMM submitted a report on the
alleged disappearance of one Engr. Morced Tagitis.
According to the said report, the victim checked-in at
ASY Pension House on October 30, 2007 at about 6:00
in the morning and then roamed around Jolo, Sulu
with an unidentified companion. It was only after a
few days when the said victim did not return that the
matter was reported to Jolo MPS. Afterwards,
elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of
the said missing person, but to no avail. The said PPO is
still conducting investigation that will lead to the
immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a
Progress Report to the Director, CIDG. The said report
stated among others that: subject person attended
an Education Development Seminar set on October
28, 2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli. On
October 30, 2007, at around 5:00 o’clock in the
morning, Engr. Tagitis reportedly arrived at Jolo Sulu
wharf aboard M/V Bounty Cruise, he was then billeted
at ASY Pension House. At about 6:15 o’clock in the
morning of the same date, he instructed his student to
purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31,
2007. That on or about 10:00 o’clock in the morning,
Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later
 in the afternoon, the student instructed to purchase
the ticket arrived at the pension house and waited for
Engr. Tagitis, but the latter did not return. On its part,
the elements of 9RCIDU is now conducting a
continuous case build up and information gathering
to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of
the search in all divisions of the CIDG to find Engr.
Tagitis who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives
since October 30, 2007, but after diligent and
thorough search, records show that no such person is
being detained in CIDG or any of its department or
divisions.
5. On this particular case, the Philippine National Police
exhausted all possible efforts, steps and actions available
under the circumstances and continuously search and
investigate [sic] the instant case. This immense mandate,
however, necessitates the indispensable role of the citizenry,
as the PNP cannot stand alone without the cooperation of the
victims and witnesses to identify the perpetrators to bring them
before the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal,
submitted as well his affidavit, also attached to the Return of
the Writ, attesting that upon receipt of the Writ of Amparo, he
caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the
Resolution of the Honorable Special Fourth Division of the
Court of Appeals, I immediately directed the Investigation
Division of this Group [CIDG] to conduct urgent investigation
on the alleged enforced disappearance of Engineer Morced
Tagitis.
That based on record, Engr. Morced N. Tagitis attended an
Education Development Seminar on October 28, 2007 at
Ateneo de Zamboanga at Zamboanga City together with
Prof. Abdulnasser Matli. On October 30, 2007, at around six
o’clock in the morning he arrived at Jolo, Sulu. He was assisted
by his student identified as Arsimin Kunnong of the Islamic
Development Bank who was also one of the participants of
the said seminar. He checked in at ASY pension house located
[sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six o’clock in the morning
of even date, Engr. Tagitis instructed his student to purchase a
fast craft ticket for Zamboanga City. In the afternoon of the
same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was
nowhere to be found anymore. Kunnong immediately
informed Prof. Abdulnasser Matli who reported the incident to
the police. The CIDG is not involved in the disappearance of
Engr. Morced Tagitis to make out a case of an enforced
disappearance which presupposes a direct or indirect
involvement of the government.
That herein [petitioner] searched all divisions and departments
for a person named Engr. Morced N. Tagitis, who was
allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such
person is being detained in CIDG or any of its department or
divisions.
That nevertheless, in order to determine the circumstances
surrounding Engr. Morced Tagitis [sic] alleged enforced
disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or
persons responsible therefore.
Likewise attached to the Return of the Writ was PNP-
PACER15 Chief PS Supt. Leonardo A. Espina’s affidavit which
alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny
any participation in the alleged abduction or illegally [sic]
detention of ENGR. MORCED N. TAGITS on October 30, 2007.
As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of
PACER nor was there any indication that the alleged
abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert
CIDG-PNP intelligence operatives alleged to have abducted
or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the
alleged disappearance of ENGR. MORCED in my capacity as
the chief PACER [sic] considering that our office, the Police
Anti-Crime and Emergency Response (PACER), a special task
force created for the purpose of neutralizing or eradicating
kidnap-for-ransom groups which until now continue to be one
of the menace of our society is a respondent in kidnapping or
illegal detention case. Simply put, our task is to go after
kidnappers and charge them in court and to abduct or
illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF
AMPARO, I directed the Chief of PACER Mindanao Oriental
(PACER-MOR) to conduct pro-active measures to investigate,
locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related
to the disappearance of ENGR. MORCED TAGITIS, which may
aid in the prosecution of the person or persons responsible, to
identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause,
manner, location and time of disappearance as well as any
pattern or practice that may have brought about the
disappearance.
That I further directed the chief of PACER-MOR, Police
Superintendent JOSE ARNALDO BRIONES JR., to submit a
written report regarding the disappearance of ENGR.
MORCED.
That in compliance with my directive, the chief of PACER-MOR
sent through fax his written report.
That the investigation and measures being undertaken to
locate/search the subject in coordination with Police Regional
Office, Autonomous Region of Muslim Mindanao (PRO-ARMM)
and Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not
to leave any stone unturned so to speak in the investigation
until the perpetrators in the instant case are brought to the bar
of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing
with the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R.
Goltiao (Gen. Goltiao), also submitted his affidavit detailing
the actions that he had taken upon receipt of the report on
Tagitis’ disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM
now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on
any cases of reported enforced disappearances and when
they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police
Provincial Office reported to me through Radio Message Cite
No. SPNP3-1105-07-2007 that on November 4, 2007 at around
3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of the Chief
of Police, Jolo Police Station, and reported the disappearance
of Engr. Morced Tagitis, scholarship coordinator of Islamic
Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the
company of or taken by any member of the Philippine
National Police but rather he just disappeared from ASY
Pension House situated at Kakuyagan Village, Village, Patikul,
Sulu, on October 30, 2007, without any trace of forcible
abduction or arrest;
7. The last known instance of communication with him was
when Arsimin Kunnong, a student scholar, was requested by
him to purchase a vessel ticket at the Office of Weezam
Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and
when he immediately inquired at the information counter
regarding his whereabouts [sic], the person in charge in the
counter informed him that Engr. Tagitis had left the premises
on October 30, 2007 around 1 o’clock p.m. and never
returned back to his room;
8. Immediately after learning the incident, I called and
directed the Provincial Director of Sulu Police Provincial Office
and other units through phone call and text messages to
conduct investigation [sic] to determine the whereabouts of
the aggrieved party and the person or persons responsible for
the threat, act or omission, to recover and preserve evidence
related to the disappearance of Engr. Tagitis, to identify
witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his
disappearance, to identify and apprehend the person or
persons involved in the disappearance so that they shall be
brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation
and Detection Management Division, I have caused the
following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated
November 22, 2007 directing PD Sulu PPO to conduct
joint investigation with CIDG and CIDU ARMM on the
matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated
November 28, 2007 directing PD Sulu PPO to expedite
compliance to my previous directive;
c) Memorandum dated December 14, 2007
addressed to PD Sulu PPO reiterating our series of
directives for investigation and directing him to
undertake exhaustive coordination efforts with the
owner of ASY Pension House and student scholars of
IDB in order to secure corroborative statements
regarding the disappearance and whereabouts of
said personality;
d) Memorandum dated December 24, 2007
addressed to PD Sulu PPO directing him to maximize
efforts to establish clues on the whereabouts of Engr.
Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or
whenever necessary, for them to voluntarily submit for
polygraph examination with the NBI so as to expunge
all clouds of doubt that they may somehow have
knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007
addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police Regional
Office 9, Zamboanga City, requesting assistance to
investigate the cause and unknown disappearance
of Engr. Tagitis considering that it is within their area of
operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO
ARMM dated December 30, 2007 addressed to PD
Sulu PPO requiring them to submit complete
investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted
his [sic] efforts to conduct investigation [sic] on the matter to
determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted
the following:
a) Progress Report dated November 6, 2007 through
Radio Message Cite No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07
informing this office that they are still monitoring the
whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007
from the Chief of Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher
Headquarters as shown in the following:
a) Memorandum dated November 6, 2007 addressed
to the Chief, PNP informing him of the facts of the
disappearance and the action being taken by our
office;
b) Memorandum dated November 6, 2007 addressed
to the Director, Directorate for Investigation and
Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007
addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr.
Tagitis cannot be determined but our office is continuously
intensifying the conduct of information gathering, monitoring
and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted
and taking note of favorable actions so far taken on the
disappearance, the CA directed Gen. Goltiao – as the officer
in command of the area of disappearance – to form TASK
FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron
Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.19 The CA
subsequently set three hearings to monitor whether TASK
FORCE TAGITIS was exerting "extraordinary efforts" in handling
the disappearance of Tagitis.20 As planned, (1) the first hearing
would be to mobilize the CIDG, Zamboanga City; (2) the
second hearing would be to mobilize intelligence with Abu
Sayyaf and ARMM; and (3) the third hearing would be to
mobilize the Chief of Police of Jolo, Sulu and the Chief of
Police of Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS
submitted to the CA an intelligence report from PSL Usman S.
Pingay, the Chief of Police of the Jolo Police Station, stating a
possible motive for Tagitis’ disappearance.22 The intelligence
report was apparently based on the sworn affidavit dated
January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof.
Matli), Professor of Islamic Studies at the University of the
Philippines and an Honorary Student Counselor of the IDB
Scholarship Program in the Philippines, who told the Provincial
Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim
Affairs in Manila, Tagitis has reportedly taken and carried
away… more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his … [personal] bank accounts by
the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia,
which [was] intended for the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the
CIDG was alleged to be responsible, he personally went to the
CIDG office in Zamboanga City to conduct an ocular
inspection/investigation, particularly of their detention
cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK
FORCE TAGITIS investigate the disappearance of Tagitis,
persistently denied any knowledge or complicity in any
abduction.25 He further testified that prior to the hearing, he
had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they
even talked to, but failed to get any lead from the respondent
in Jolo.26 In his submitted investigation report dated January
16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation
at the Headquarters 9 RCIDU and the documents at hand, it is
my own initial conclusion that the 9RCIDU and other PNP units
in the area had no participation neither [sic] something to do
with [sic] mysterious disappearance of Engr. Morced Tagitis
last October 30, 2007. Since doubt has been raised regarding
the emolument on the Islamic Development Bank Scholar
program of IDB that was reportedly deposited in the personal
account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia. Secondly, it could might [sic] be
done by resentment or sour grape among students who are
applying for the scholar [sic] and were denied which was
allegedly conducted/screened by the subject being the
coordinator of said program.
20. It is also premature to conclude but it does or it may and
[sic] presumed that the motive behind the disappearance of
the subject might be due to the funds he maliciously spent for
his personal interest and wanted to elude responsibilities from
the institution where he belong as well as to the Islamic
student scholars should the statement of Prof. Matli be true or
there might be a professional jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the
respondents be dropped and dismissed considering on [sic]
the police and military actions in the area particularly the
CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and
investigation for the early resolution of this instant case. But rest
assured, our office, in coordination with other law-
enforcement agencies in the area, are continuously and
religiously conducting our investigation for the resolution of this
case.
On February 4, 2008, the CA issued an ALARM WARNING that
Task Force Tagitis did not appear to be exerting extraordinary
efforts in resolving Tagitis’ disappearance on the following
grounds:28
(1) This Court FOUND that it was only as late as
January 28, 2008, after the hearing, that GEN. JOEL
GOLTIAO and COL. AHIRON AJIRIM had requested for
clear photographs when it should have been
standard operating procedure in kidnappings or
disappearances that the first agenda was for the
police to secure clear pictures of the missing person,
Engr. Morced Tagitis, for dissemination to all parts of
the country and to neighboring countries. It had been
three (3) months since GEN. JOEL GOLTIAO admitted
having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more than
one (1) month since the Writ of Amparo had been
issued on December 28, 2007. It had been three (3)
weeks when battle formation was ordered through
Task Force Tagitis, on January 17, 2008. It was only on
January 28, 2008 when the Task Force Tagitis
requested for clear and recent photographs of the
missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis’ claim that they already had an "all
points bulletin", since November 5, 2007, on the
missing person, Engr. Morced Tagitis. How could the
police look for someone who disappeared if no clear
photograph had been disseminated?
(2) Furthermore, Task Force Tagitis’ COL. AHIROM
AJIRIM informed this Court that P/Supt KASIM was
designated as Col. Ahirom Ajirim’s replacement in the
latter’s official designated post. Yet, P/Supt KASIM’s
subpoena was returned to this Court unserved. Since
this Court was made to understand that it was P/Supt
KASIM who was the petitioner’s unofficial source of the
military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG
(par. 15 of the Petition), the close contact between
P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE
TAGITIS should have ensured the appearance of Col.
KASIM in response to this court’s subpoena and COL.
KASIM could have confirmed the military intelligence
information that bad elements of the CIDG had
abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis,
testified on direct examination that she went to Jolo and
Zamboanga in her efforts to locate her husband. She said that
a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information
that allowed her to "specify" her allegations, "particularly
paragraph 15 of the petition."29 This friend also told her that her
husband "[was] in good hands."30 The respondent also testified
that she sought the assistance of her former boss in Davao
City, Land Bank Bajada Branch Manager Rudy Salvador, who
told her that "PNP CIDG is holding [her husband], Engineer
Morced Tagitis."31 The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and
her friends (who were then with her) a "highly confidential
report" that contained the "alleged activities of Engineer
Tagitis" and informed her that her husband was abducted
because "he is under custodial investigation" for being a liaison
for "J.I. or Jema’ah Islamiah."32
On January 17, 2008, the respondent on cross-examination
testified that she is Tagitis’ second wife, and they have been
married for thirteen years; Tagitis was divorced from his first
wife.33 She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis
was then on his way to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husband’s
disappearance on October 30, 2007 when her stepdaughter,
Zaynah Tagitis (Zaynah), informed her that she had not heard
from her father since the time they arranged to meet in Manila
on October 31, 2007.35 The respondent explained that it took
her a few days (or on November 5, 2007) to personally ask
Kunnong to report her husband’s disappearance to the Jolo
Police Station, since she had the impression that her husband
could not communicate with her because his cellular phone’s
battery did not have enough power, and that he would call
her when he had fully-charged his cellular phone’s battery.36
The respondent also identified the high-ranking military friend,
who gave her the information found in paragraph 15 of her
petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She
met him in Camp Karingal, Zamboanga through her
boss.37 She also testified that she was with three other people,
namely, Mrs. Marydel Martin Talbin and her two friends from
Mati City, Davao Oriental, when Col. Kasim read to them the
contents of the "highly confidential report" at Camp Katitipan,
Davao City. The respondent further narrated that the report
indicated that her husband met with people belonging to a
terrorist group and that he was under custodial investigation.
She then told Col. Kasim that her husband was a diabetic
taking maintenance medication, and asked that the Colonel
relay to the persons holding him the need to give him his
medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two
narrative reports,39 signed by the respondent, detailing her
efforts to locate her husband which led to her meetings with
Col. Ancanan of the Philippine Army and Col. Kasim of the
PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my
friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00
o’clock in the morning; we arrived at Zamboanga Airport at
around 10:00 o’clock. We [were] fetched by the two staffs of
Col. Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col.
Ancanan. He interviewed me and got information about the
personal background of Engr. Morced N. Tagitis. After he
gathered all information, he revealed to us the contents of
text messages they got from the cellular phone of the subject
Engr. Tagitis. One of the very important text messages of Engr.
Tagitis sent to his daughter Zaynah Tagitis was that she was not
allowed to answer any telephone calls in his condominium
unit.
While we were there he did not tell us any information of the
whereabouts of Engr. Tagitis. After the said meeting with Col.
Ancanan, he treated us as guests to the city. His two staffs
accompanied us to the mall to purchase our plane ticket
going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00
in the morning, Col. Ancanan and I were discussing some
points through phone calls. He assured me that my husband is
alive and he’s last looked [sic] in Talipapao, Jolo, Sulu. Yet I did
not believe his given statements of the whereabouts of my
husband, because I contacted some of my friends who have
access to the groups of MILF, MNLF and ASG. I called up Col.
Ancanan several times begging to tell me the exact location
of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up
again because the PNP, Jolo did not give me any information
of the whereabouts of my husband. Col. Ancanan told me
that "Sana ngayon alam mo na kung saan ang kinalalagyan
ng asawa mo." When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to
pay him a visit for the reason that the Chief of Police of Jolo
told me not to contact any AFP officials and he promised me
that he can solve the case of my husband (Engr. Tagitis) within
nine days.
I appreciate the effort of Col. Ancanan on trying to solve the
case of my husband Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim,
as follows:41
On November 7, 2007, I went to Land Bank of the Philippines,
Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told
him that my husband, Engineer Morced Tagitis was presumed
to be abducted in Jolo, Sulu on October 30, 2007. I asked him
a favor to contact his connections in the military in Jolo, Sulu
where the abduction of Engr. Tagitis took place. Mr. Salvador
immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather
reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna
Mendoza, Executive Secretary, accompanied me to Camp
Katitipan to meet Col. Kasim. Mr. Salvador introduced me to
Col. Kasim and we had a short conversation. And he assured
me that he’ll do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up
informing me that I am to go to Camp Katitipan to meet Col.
Kasim for he has an urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with
my three friends. That was the time that Col. Kasim read to us
the confidential report that Engr. Tagitis was allegedly
connected [with] different terrorist [groups], one of which he
mentioned in the report was OMAR PATIK and a certain
SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for
the injured terrorists as a supplier. These are the two
information that I can still remember. It was written in a long
bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that "Please don’t quote my Name!
Because this is a raw report." He assured me that my husband
is alive and he is in the custody of the military for custodial
investigation. I told him to please take care of my husband
because he has aliments and he recently took insulin for he is
a diabetic patient.
In my petition for writ of amparo, I emphasized the information
that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel
Martin Talbin (Mrs. Talbin) to corroborate her testimony
regarding her efforts to locate her husband, in relation
particularly with the information she received from Col. Kasim.
Mrs. Talbin testified that she was with the respondent when she
went to Zamboanga to see Col. Ancanan, and to Davao City
at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col.
Ancanan, who told them that there was a report and that he
showed them a series of text messages from Tagitis’ cellular
phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she
went with the respondent together with two other
companions, namely, Salvacion Serrano and Mini Leong, to
Camp Katitipan to talk to Col. Kasim.44 The respondent asked
Col. Kasim if he knew the exact location of Engr. Tagitis. Col.
Kasim told them that Tagitis was in good hands, although he
was not certain whether he was with the PNP or with the
Armed Forces of the Philippines (AFP). She further recounted
that based on the report Col. Kasim read in their presence,
Tagitis was under custodial investigation because he was
being charged with terrorism; Tagitis in fact had been under
surveillance since January 2007 up to the time he was
abducted when he was seen talking to Omar Patik and a
certain Santos of Bulacan, a "Balik Islam" charged with
terrorism. Col. Kasim also told them that he could not give a
copy of the report because it was a "raw report."45 She also
related that the Col. Kasim did not tell them exactly where
Tagitis was being kept, although he mentioned Talipapao,
Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that
despite what his January 4, 2008 affidavit indicated,51 he
never told PS Supt. Pingay, or made any accusation, that
Tagitis took away money entrusted to him.52 Prof. Matli
confirmed, however, that that he had received an e-mail
report53 from Nuraya Lackian of the Office of Muslim Affairs in
Manila that the IDB was seeking assistance of the office in
locating the funds of IDB scholars deposited in Tagitis’ personal
account.54
On cross-examination by the respondent’s counsel, Prof. Matli
testified that his January 4, 2008 affidavit was already
prepared when PS Supt. Pingay asked him to sign it.55 Prof
Matli clarified that although he read the affidavit before
signing it, he "was not so much aware of… [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to
rebut material portions of the respondent’s testimony,
particularly the allegation that he had stated that Tagitis was
in the custody of either the military or the PNP.57 Col. Kasim
categorically denied the statements made by the respondent
in her narrative report, specifically: (1) that Tagitis was seen
carrying boxes of medicines as supplier for the injured terrorists;
(2) that Tagitis was under the custody of the military, since he
merely said to the respondent that "your husband is in good
hands" and is "probably taken cared of by his armed
abductors;" and (3) that Tagitis was under custodial
investigation by the military, the PNP or the CIDG Zamboanga
City.58 Col. Kasim emphasized that the "informal letter" he
received from his informant in Sulu did not indicate that Tagitis
was in the custody of the CIDG.59 He also stressed that the
information he provided to the respondent was merely a "raw
report" sourced from "barangay intelligence" that still needed
confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information
he gave the respondent was given to him by his informant,
who was a "civilian asset," through a letter which he
considered as "unofficial."61 Col. Kasim stressed that the letter
was only meant for his "consumption" and not for reading by
others.62 He testified further that he destroyed the letter right
after he read it to the respondent and her companions
because "it was not important to him" and also because the
information it contained had no importance in relation with
the abduction of Tagitis.63 He explained that he did not keep
the letter because it did not contain any information
regarding the whereabouts of Tagitis and the person(s)
responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also
presented Police Senior Superintendent Jose Volpane Pante
(Col. Pante), Chief of the CIDG-9, to disprove the respondent’s
allegation that Tagitis was in the custody of CIDG-Zamboanga
City.65 Col. Pante clarified that the CIDG was the "investigative
arm" of the PNP, and that the CIDG "investigates and
prosecutes all cases involving violations in the Revised Penal
Code particularly those considered as heinous crimes." 66 Col.
Pante further testified that the allegation that 9 RCIDU
personnel were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in Jolo,
Sulu before or after Tagitis’ reported disappearance.67 Col.
Pante added that the four (4) personnel assigned to the Sulu
CIDT had no capability to conduct any "operation," since they
were only assigned to investigate matters and to monitor the
terrorism situation.68 He denied that his office conducted any
surveillance on Tagitis prior to the latter’s
disappearance.69 Col. Pante further testified that his
investigation of Tagitis’ disappearance was unsuccessful; the
investigation was "still facing a blank wall" on the whereabouts
of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that
the disappearance of Tagitis was an "enforced
disappearance" under the United Nations (UN) Declaration on
the Protection of All Persons from Enforced
Disappearances.72 The CA ruled that when military intelligence
pinpointed the investigative arm of the PNP (CIDG) to be
involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG
was involved was based on the respondent’s testimony,
corroborated by her companion, Mrs. Talbin. The CA noted
that the information that the CIDG, as the police intelligence
arm, was involved in Tagitis’ abduction came from no less
than the military – an independent agency of government.
The CA thus greatly relied on the "raw report" from Col. Kasim’s
asset, pointing to the CIDG’s involvement in Tagitis’ abduction.
The CA held that "raw reports" from an "asset" carried "great
weight" in the intelligence world. It also labeled as "suspect"
Col. Kasim’s subsequent and belated retraction of his
statement that the military, the police, or the CIDG was
involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable"
and "a bedlam of speculation" police theories painting the
disappearance as "intentional" on the part of Tagitis. He had
no previous brushes with the law or any record of overstepping
the bounds of any trust regarding money entrusted to him; no
student of the IDB scholarship program ever came forward to
complain that he or she did not get his or her stipend. The CA
also found no basis for the police theory that Tagitis was "trying
to escape from the clutches of his second wife," on the basis
of the respondent’s testimony that Tagitis was a Muslim who
could have many wives under the Muslim faith, and that there
was "no issue" at all when the latter divorced his first wife in
order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM
paramilitary as the cause for Tagitis’ disappearance, since the
respondent, the police and the military noted that there was
no acknowledgement of Tagitis’ abduction or demand for
payment of ransom – the usual modus operandi of these
terrorist groups.
Based on these considerations, the CA thus extended the
privilege of the writ to Tagitis and his family, and directed the
CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I.
Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to
exert extraordinary diligence and efforts to protect the life,
liberty and security of Tagitis, with the obligation to provide
monthly reports of their actions to the CA. At the same time,
the CA dismissed the petition against the then respondents
from the military, Lt. Gen Alexander Yano and Gen. Ruben
Rafael, based on the finding that it was PNP-CIDG, not the
military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the
CA decision, but the CA denied the motion in its Resolution of
April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA’s March 7, 2008
decision, the petitioners mainly dispute the sufficiency in form
and substance of the Amparo petition filed before the CA; the
sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty
and security of Tagitis had been violated; the sufficiency of
evidence supporting the conclusion that Tagitis was
abducted; the conclusion that the CIDG Zamboanga was
responsible for the abduction; and, generally, the ruling that
the respondent discharged the burden of proving the
allegations of the petition by substantial evidence.74
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondent’s Amparo petition, the petitioners contend that
the petition violated Section 5(c), (d), and (e) of the Amparo
Rule. Specifically, the petitioners allege that the respondent
failed to:
1) allege any act or omission the petitioners
committed in violation of Tagitis’ rights to life, liberty
and security;
2) allege in a complete manner how Tagitis was
abducted, the persons responsible for his
disappearance, and the respondent’s source of
information;
3) allege that the abduction was committed at the
petitioners’ instructions or with their consent;
4) implead the members of CIDG regional office in
Zamboanga alleged to have custody over her
husband;
5) attach the affidavits of witnesses to support her
accusations;
6) allege any action or inaction attributable to the
petitioners in the performance of their duties in the
investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to
determine the fate or whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified
and shall allege, among others (in terms of the portions the
petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat, act or
omission; and
The framers of the Amparo Rule never intended Section 5(c) to
be complete in every detail in stating the threatened or actual
violation of a victim’s rights. As in any other initiatory pleading,
the pleader must of course state the ultimate facts constituting
the cause of action, omitting the evidentiary details.76 In an
Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which
addresses a situation of uncertainty; the petitioner may not be
able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or
arrest him or her, or where the victim is detained, because
these information may purposely be hidden or covered up by
those who caused the disappearance. In this type of situation,
to require the level of specificity, detail and precision that the
petitioners apparently want to read into the Amparo Rule is to
make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading
the petition should be to determine whether it contains the
details available to the petitioner under the circumstances,
while presenting a cause of action showing a violation of the
victim’s rights to life, liberty and security through State or
private party action. The petition should likewise be read in its
totality, rather than in terms of its isolated component parts, to
determine if the required elements – namely, of the
disappearance, the State or private action, and the actual or
threatened violations of the rights to life, liberty or security –
are present.
In the present case, the petition amply recites in its paragraphs
4 to 11 the circumstances under which Tagitis suddenly
dropped out of sight after engaging in normal activities, and
thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in
relation to paragraphs 15 and 16, that according to reliable
information, police operatives were the perpetrators of the
abduction. It also clearly alleged how Tagitis’ rights to life,
liberty and security were violated when he was "forcibly taken
and boarded on a motor vehicle by a couple of burly men
believed to be police intelligence operatives," and then taken
"into custody by the respondents’ police intelligence
operatives since October 30, 2007, specifically by the CIDG,
PNP Zamboanga City, x x x held against his will in an earnest
attempt of the police to involve and connect [him] with
different terrorist groups."77
These allegations, in our view, properly pleaded ultimate facts
within the pleader’s knowledge about Tagitis’ disappearance,
the participation by agents of the State in this disappearance,
the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be
faulted for any failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is
its lack of supporting affidavit, as required by Section 5(c) of
the Amparo Rule. Owing to the summary nature of the
proceedings for the writ and to facilitate the resolution of the
petition, the Amparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be
used as the affiant’s direct testimony.78 This requirement,
however, should not be read as an absolute one that
necessarily leads to the dismissal of the petition if not strictly
followed. Where, as in this case, the petitioner has substantially
complied with the requirement by submitting a verified
petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the
required affidavits was fully cured when the respondent and
her witness (Mrs. Talbin) personally testified in the CA hearings
held on January 7 and 17 and February 18, 2008 to swear to
and flesh out the allegations of the petition. Thus, even on this
point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior
investigation of an alleged disappearance must have been
made, specifying the manner and results of the investigation.
Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities
undertook in relation with the reported disappearance.79
We reject the petitioners’ argument that the respondent’s
petition did not comply with the Section 5(d) requirements of
the Amparo Rule, as the petition specifies in its paragraph 11
that Kunnong and his companions immediately reported
Tagitis’ disappearance to the police authorities in Jolo, Sulu as
soon as they were relatively certain that he indeed had
disappeared. The police, however, gave them the "ready
answer" that Tagitis could have been abducted by the Abu
Sayyaf group or other anti-government groups. The
respondent also alleged in paragraphs 17 and 18 of her
petition that she filed a "complaint" with the PNP Police Station
in Cotobato and in Jolo, but she was told of "an intriguing tale"
by the police that her husband was having "a good time with
another woman." The disappearance was alleged to have
been reported, too, to no less than the Governor of the
ARMM, followed by the respondent’s personal inquiries that
yielded the factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports
have been made to the police authorities, and that
investigations should have followed. That the petition did not
state the manner and results of the investigation that the
Amparo Rule requires, but rather generally stated the inaction
of the police, their failure to perform their duty to investigate,
or at the very least, their reported failed efforts, should not be
a reflection on the completeness of the petition. To require the
respondent to elaborately specify the names, personal
circumstances, and addresses of the investigating authority, as
well the manner and conduct of the investigation is an overly
strict interpretation of Section 5(d), given the respondent’s
frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that
the allegations of the petition on the investigations undertaken
are sufficiently complete for purposes of bringing the petition
forward.
Section 5(e) is in the Amparo Rule to prevent the use of a
petition – that otherwise is not supported by sufficient
allegations to constitute a proper cause of action – as a
means to "fish" for evidence.81 The petitioners contend that the
respondent’s petition did not specify what "legally available
efforts were taken by the respondent," and that there was an
"undue haste" in the filing of the petition when, instead of
cooperating with authorities, the respondent immediately
invoked the Court’s intervention.
We do not see the respondent’s petition as the petitioners
view it.
Section 5(e) merely requires that the Amparo petitioner (the
respondent in the present case) allege "the actions and
recourses taken to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for
the threat, act or omission." The following allegations of the
respondent’s petition duly outlined the actions she had taken
and the frustrations she encountered, thus compelling her to
file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of
the pension house to take his early lunch but while out on the
street, a couple of burly men believed to be police
intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the
knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former
sought the help of another IDB scholar and reported the
matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in
Jolo, exerted efforts in trying to locate the whereabouts of
Engr. Tagitis and when he reported the matter to the police
authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could [have been] abducted by the Abu
Sayyaf group and other groups known to be fighting against
the government;
12. Being scared with these suggestions and insinuations of the
police officers, Kunnong reported the matter to the
[respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of
her co-employees with the Land Bank in Digos branch, Digos
City, Davao del Sur, who likewise sought help from some of
their friends in the military who could help them find/locate
the whereabouts of her husband;
xxxx
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with
the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police
Station at the ARMM in Cotobato and in Jolo, as suggested by
her friends, seeking their help to find her husband, but [the
respondent’s] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City,
and all these places have been visited by the [respondent] in
search for her husband, which entailed expenses for her trips
to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only
to try complying to the different suggestions of these police
officers, despite of which, her efforts produced no positive
results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues
and remedies but to no avail, and under the circumstances,
[respondent] has no other plain, speedy and adequate
remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners],
their intelligence operatives and the like which are in total
violation of the subject’s human and constitutional rights,
except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent’s
petition for the Writ of Amparo is sufficient in form and
substance and that the Court of Appeals had every reason to
proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and
application of the Rule on the Writ of Amparo in an enforced
disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance
situation, a brief look at the historical context of the writ and
enforced disappearances would be very helpful.
The phenomenon of enforced disappearance arising from
State action first attracted notice in Adolf Hitler’s Nact und
Nebel Erlass or Night and Fog Decree of December 7,
1941.82 The Third Reich’s Night and Fog Program, a State
policy, was directed at persons in occupied territories
"endangering German security"; they were transported
secretly to Germany where they disappeared without a trace.
In order to maximize the desired intimidating effect, the policy
prohibited government officials from providing information
about the fate of these targeted persons.83
In the mid-1970s, the phenomenon of enforced
disappearances resurfaced, shocking and outraging the world
when individuals, numbering anywhere from 6,000 to 24,000,
were reported to have "disappeared" during the military
regime in Argentina. Enforced disappearances spread in Latin
America, and the issue became an international concern
when the world noted its widespread and systematic use by
State security forces in that continent under Operation
Condor84 and during the Dirty War85 in the 1970s and 1980s.
The escalation of the practice saw political activists secretly
arrested, tortured, and killed as part of governments’ counter-
insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin
American media standardized the term "disappearance" to
describe the phenomenon. The victims of enforced
disappearances were called the "desaparecidos,"86 which
literally means the "disappeared ones."87 In general, there are
three different kinds of "disappearance" cases:
1) those of people arrested without witnesses or
without positive identification of the arresting agents
and are never found again;
2) those of prisoners who are usually arrested without
an appropriate warrant and held in complete
isolation for weeks or months while their families are
unable to discover their whereabouts and the military
authorities deny having them in custody until they
eventually reappear in one detention center or
another; and
3) those of victims of "salvaging" who have
disappeared until their lifeless bodies are later
discovered.88
In the Philippines, enforced disappearances generally fall
within the first two categories,89 and 855 cases were recorded
during the period of martial law from 1972 until 1986. Of this
number, 595 remained missing, 132 surfaced alive and 127
were found dead. During former President Corazon C.
Aquino’s term, 820 people were reported to have
disappeared and of these, 612 cases were documented. Of
this number, 407 remain missing, 108 surfaced alive and 97
were found dead. The number of enforced disappearances
dropped during former President Fidel V. Ramos’ term when
only 87 cases were reported, while the three-year term of
former President Joseph E. Estrada yielded 58 reported cases.
KARAPATAN, a local non-governmental organization, reports
that as of March 31, 2008, the records show that there were a
total of 193 victims of enforced disappearance under
incumbent President Gloria M. Arroyo’s administration. The
Commission on Human Rights’ records show a total of 636
verified cases of enforced disappearances from 1985 to 1993.
Of this number, 406 remained missing, 92 surfaced alive, 62
were found dead, and 76 still have undetermined
status.90 Currently, the United Nations Working Group on
Enforced or Involuntary Disappearance91 reports 619
outstanding cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November 30,
2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover
extralegal killings and enforced disappearances or threats
thereof."93 We note that although the writ specifically covers
"enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court
Committee on the Revision of Rules (Committee) reveal that
the drafters of the Amparo Rule initially considered providing
an elemental definition of the concept of enforced
disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should
come up or formulate a specific definition [for] extrajudicial
killings and enforced disappearances. From that definition,
then we can proceed to formulate the rules, definite rules
concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law
penalizing extrajudicial killings and enforced
disappearances… so initially also we have to [come up with]
the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our
concept of killings and disappearances will define the
jurisdiction of the courts. So we’ll have to agree among
ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors.
That is an element incorporated in their concept of
extrajudicial killings and enforced disappearances. In other
jurisdictions, the concept includes acts and omissions not only
of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should
these rules include the killings, the disappearances which may
be authored by let us say, the NPAs or the leftist organizations
and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be
covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills
filed in the House of Representatives96 and in the Senate97 on
extrajudicial killings and enforced disappearances, and
resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the
nature and scope of the concerns within its power to address
and provided the appropriate remedy therefor, mindful that
an elemental definition may intrude into the ongoing
legislative efforts.98
As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized
separately from the component criminal acts undertaken to
carry out these killings and enforced disappearances and are
now penalized under the Revised Penal Code and special
laws.99 The simple reason is that the Legislature has not spoken
on the matter; the determination of what acts are criminal
and what the corresponding penalty these criminal acts
should carry are matters of substantive law that only the
Legislature has the power to enact under the country’s
constitutional scheme and power structure.
Even without the benefit of directly applicable substantive
laws on extra-judicial killings and enforced disappearances,
however, the Supreme Court is not powerless to act under its
own constitutional mandate to promulgate "rules concerning
the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts," 100 since
extrajudicial killings and enforced disappearances, by their
nature and purpose, constitute State or private party violation
of the constitutional rights of individuals to life, liberty and
security. Although the Court’s power is strictly procedural and
as such does not diminish, increase or modify substantive
rights, the legal protection that the Court can provide can be
very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court,
through its procedural rules, can set the procedural standards
and thereby directly compel the public authorities to act on
actual or threatened violations of constitutional rights. To state
the obvious, judicial intervention can make a difference –
even if only procedurally – in a situation when the very same
investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once
again that we do not rule on any issue of criminal culpability
for the extrajudicial killing or enforced disappearance. This is
an issue that requires criminal action before our criminal courts
based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken
place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate
remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of
Amparo, is twofold. The first is to ensure that all efforts at
disclosure and investigation are undertaken under pain of
indirect contempt from this Court when governmental efforts
are less than what the individual situations require. The second
is to address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored. In these
senses, our orders and directives relative to the writ are
continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully
addressed by the complete determination of the fate and the
whereabouts of the victim, by the production of the
disappeared person and the restoration of his or her liberty
and security, and, in the proper case, by the commencement
of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or
enforced disappearance is considered a flagrant violation of
human rights.101 It does not only violate the right to life, liberty
and security of the desaparecido; it affects their families as
well through the denial of their right to information regarding
the circumstances of the disappeared family member. Thus,
enforced disappearances have been said to be "a double
form of torture," with "doubly paralyzing impact for the victims,"
as they "are kept ignorant of their own fates, while family
members are deprived of knowing the whereabouts of their
detained loved ones" and suffer as well the serious economic
hardship and poverty that in most cases follow the
disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of
"Disappeared Persons" in December 1978 under Resolution
33/173. The Resolution expressed the General Assembly’s deep
concern arising from "reports from various parts of the world
relating to enforced or involuntary disappearances," and
requested the "UN Commission on Human Rights to consider
the issue of enforced disappearances with a view to making
appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of
enforced disappearance had become a global
phenomenon, the UN General Assembly adopted the
Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first
time, provided in its third preambular clause a working
description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent
manner, enforced disappearances occur, in the sense that
persons are arrested, detained or abducted against their will
or otherwise deprived of their liberty by officials of different
branches or levels of Government, or by organized groups or
private individuals acting on behalf of, or with the support,
direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places
such persons outside the protection of the law. [Emphasis
supplied]
Fourteen years after (or on December 20, 2006), the UN
General Assembly adopted the International Convention for
the Protection of All Persons from Enforced Disappearance
(Convention).105 The Convention was opened for signature in
Paris, France on February 6, 2007.106 Article 2 of the
Convention defined enforced disappearance as follows:
For the purposes of this Convention, "enforced
disappearance" is considered to be the arrest, detention,
abduction or any other form of deprivation of liberty by agents
of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of
the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to
assert that there is a right not to be subject to enforced
disappearance107 and that this right is non-derogable.108 It
provides that no one shall be subjected to enforced
disappearance under any circumstances, be it a state of war,
internal political instability, or any other public emergency. It
obliges State Parties to codify enforced disappearance as an
offense punishable with appropriate penalties under their
criminal law.109 It also recognizes the right of relatives of the
disappeared persons and of the society as a whole to know
the truth on the fate and whereabouts of the disappeared
and on the progress and results of the investigation.110 Lastly, it
classifies enforced disappearance as a continuing offense,
such that statutes of limitations shall not apply until the fate
and whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the
Convention, so that the country is not yet committed to enact
any law penalizing enforced disappearance as a crime. The
absence of a specific penal law, however, is not a stumbling
block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the
constitutional rights to life, liberty and security that the
Supreme Court is mandated by the Constitution to protect
through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms),
the Court is guided, in acting on Amparo cases, by the reality
that the Philippines is a member of the UN, bound by its
Charter and by the various conventions we signed and
ratified, particularly the conventions touching on humans
rights. Under the UN Charter, the Philippines pledged to
"promote universal respect for, and observance of, human
rights and fundamental freedoms for all without distinctions as
to race, sex, language or religion."112 Although no universal
agreement has been reached on the precise extent of the
"human rights and fundamental freedoms" guaranteed to all
by the Charter,113 it was the UN itself that issued the
Declaration on enforced disappearance, and this Declaration
states:114
Any act of enforced disappearance is an offence to dignity. It
is condemned as a denial of the purposes of the Charter of
the United Nations and as a grave and flagrant violation of
human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. [Emphasis
supplied]
As a matter of human right and fundamental freedom and as
a policy matter made in a UN Declaration, the ban on
enforced disappearance cannot but have its effects on the
country, given our own adherence to "generally accepted
principles of international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care
Association of the Philippines v. Duque III,116 we held that:
Under the 1987 Constitution, international law can become
part of the sphere of domestic law either
by transformation or incorporation. The transformation method
requires that an international law be transformed into a
domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by
mere constitutional declaration, international law is deemed to
have the force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of
international law" as norms of general or customary
international law that are binding on all states. We held
further:117
[G]enerally accepted principles of international law, by virtue
of the incorporation clause of the Constitution, form part of
the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread,
and consistent practice on the part of States; and a
psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring
it. [Emphasis in the original]
The most widely accepted statement of sources of
international law today is Article 38(1) of the Statute of the
International Court of Justice, which provides that the Court
shall apply "international custom, as evidence of a general
practice accepted as law."118 The material sources of custom
include State practice, State legislation, international and
national judicial decisions, recitals in treaties and other
international instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions
relating to legal questions in the UN General
Assembly.119 Sometimes referred to as "evidence" of
international law,120 these sources identify the substance and
content of the obligations of States and are indicative of the
"State practice" and "opinio juris" requirements of international
law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration,
the Organization of American States (OAS) General Assembly
adopted the Inter-American Convention on Enforced
Disappearance of Persons in June 1994.122 State parties
undertook under this Convention "not to practice, permit, or
tolerate the forced disappearance of persons, even in states
of emergency or suspension of individual guarantees."123 One
of the key provisions includes the States’ obligation to enact
the crime of forced disappearance in their respective national
criminal laws and to establish jurisdiction over such cases when
the crime was committed within their jurisdiction, when the
victim is a national of that State, and "when the alleged
criminal is within its territory and it does not proceed to
extradite him," which can be interpreted as establishing
universal jurisdiction among the parties to the Inter-American
Convention.124 At present, Colombia, Guatemala, Paraguay,
Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have
defined activities involving enforced disappearance to be
criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights
has no explicit provision dealing with the protection against
enforced disappearance. The European Court of Human
Rights (ECHR), however, has applied the Convention in a way
that provides ample protection for the underlying rights
affected by enforced disappearance through the
Convention’s Article 2 on the right to life; Article 3 on the
prohibition of torture; Article 5 on the right to liberty and
security; Article 6, paragraph 1 on the right to a fair trial; and
Article 13 on the right to an effective remedy. A leading
example demonstrating the protection afforded by the
European Convention is Kurt v. Turkey,126where the ECHR
found a violation of the right to liberty and security of the
disappeared person when the applicant’s son disappeared
after being taken into custody by Turkish forces in the Kurdish
village of Agilli in November 1993. It further found the
applicant (the disappeared person’s mother) to be a victim of
a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.127
Third, in the United States, the status of the prohibition on
enforced disappearance as part of customary international
law is recognized in the most recent edition of Restatement of
the Law: The Third,128 which provides that "[a] State violates
international law if, as a matter of State policy, it practices,
encourages, or condones… (3) the murder or causing the
disappearance of individuals."129 We significantly note that in a
related matter that finds close identification with enforced
disappearance – the matter of torture – the United States
Court of Appeals for the Second Circuit Court held in Filartiga
v. Pena-Irala130 that the prohibition on torture had attained the
status of customary international law. The court further
elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify
with great precision the obligations of member nations under
the Charter. Since their adoption, "(m)embers can no longer
contend that they do not know what human rights they
promised in the Charter to promote." Moreover, a U.N.
Declaration is, according to one authoritative definition, "a
formal and solemn instrument, suitable for rare occasions
when principles of great and lasting importance are being
enunciated." Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the
dichotomy of ‘binding treaty’ against ‘non-binding
pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by
custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have
concluded that the Universal Declaration has become, in toto,
a part of binding, customary international law. [Citations
omitted]
Fourth, in interpreting Article 2 (right to an effective domestic
remedy) of the International Convention on Civil and Political
Rights (ICCPR), to which the Philippines is both a signatory and
a State Party, the UN Human Rights Committee, under the
Office of the High Commissioner for Human Rights, has stated
that the act of enforced disappearance violates Articles 6
(right to life), 7 (prohibition on torture, cruel, inhuman or
degrading treatment or punishment) and 9 (right to liberty and
security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute
establishing the International Criminal Court (ICC) also covers
enforced disappearances insofar as they are defined as
crimes against humanity,132 i.e., crimes "committed as part of a
widespread or systematic attack against any civilian
population, with knowledge of the attack." While more than
100 countries have ratified the Rome Statute,133 the Philippines
is still merely a signatory and has not yet ratified it. We note
that Article 7(1) of the Rome Statute has been incorporated in
the statutes of other international and hybrid tribunals,
including Sierra Leone Special Court, the Special Panels for
Serious Crimes in Timor-Leste, and the Extraordinary Chambers
in the Courts of Cambodia.134 In addition, the implementing
legislation of State Parties to the Rome Statute of the ICC has
given rise to a number of national criminal provisions also
covering enforced disappearance.135
While the Philippines is not yet formally bound by the terms of
the Convention on enforced disappearance (or by the
specific terms of the Rome Statute) and has not formally
declared enforced disappearance as a specific crime, the
above recital shows that enforced disappearance as a State
practice has been repudiated by the international
community, so that the ban on it is now a generally accepted
principle of international law, which we should consider a part
of the law of the land, and which we should act upon to the
extent already allowed under our laws and the international
conventions that bind us.
The following civil or political rights under the Universal
Declaration of Human Rights, the ICCPR and the International
Convention on Economic, Social and Cultural Rights (ICESR)
may be infringed in the course of a disappearance:136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other
cruel, inhuman or degrading treatment or
punishment;
4) the right to life, when the disappeared person is
killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including
reparation and compensation;
8) the right to know the truth regarding the
circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state
party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or
freedoms as herein recognized are violated shall have
an effective remedy, notwithstanding that the
violation has been committed by persons acting in an
official capacity;
(b) To ensure that any person claiming such a remedy
shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or by
any other competent authority provided for by the
legal system of the State, and to develop the
possibilities of judicial remedy;
(c) To ensure that the competent authorities shall
enforce such remedies when granted. [Emphasis
supplied]
In General Comment No. 31, the UN Human Rights Committee
opined that the right to an effective remedy under Article 2 of
the ICCPR includes the obligation of the State to investigate
ICCPR violations promptly, thoroughly, and effectively, viz:137
15. Article 2, paragraph 3, requires that in addition to effective
protection of Covenant rights, States Parties must ensure that
individuals also have accessible and effective remedies to
vindicate those rights… The Committee attaches importance
to States Parties' establishing appropriate judicial and
administrative mechanisms for addressing claims of rights
violations under domestic law… Administrative mechanisms
are particularly required to give effect to the general
obligation to investigate allegations of violations promptly,
thoroughly and effectivelythrough independent and impartial
bodies. A failure by a State Party to investigate allegations of
violations could in and of itself give rise to a separate breach
of the Covenant. Cessation of an ongoing violation is an
essential element of the right to an effective remedy.
[Emphasis supplied]
The UN Human Rights Committee further stated in the same
General Comment No. 31 that failure to investigate as well as
failure to bring to justice the perpetrators of ICCPR violations
could in and of itself give rise to a separate breach of the
Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal
violations of certain Covenant rights, States Parties must ensure
that those responsible are brought to justice. As with failure to
investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach
of the Covenant. These obligations arise notably in respect of
those violations recognized as criminal under either domestic
or international law, such as torture and similar cruel, inhuman
and degrading treatment (article 7), summary and arbitrary
killing (article 6) and enforced disappearance (articles 7 and 9
and, frequently, 6). Indeed, the problem of impunity for these
violations, a matter of sustained concern by the Committee,
may well be an important contributing element in the
recurrence of the violations. When committed as part of a
widespread or systematic attack on a civilian population,
these violations of the Covenant are crimes against humanity
(see Rome Statute of the International Criminal Court, article
7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in
ruling that the right to security of persons is a guarantee of the
protection of one’s right by the government, held that:
The right to security of person in this third sense is a corollary of
the policy that the State "guarantees full respect for human
rights" under Article II, Section 11 of the 1987 Constitution. As
the government is the chief guarantor of order and security,
the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does
not afford protection to these rights especially when they are
under threat. Protection includes conducting effective
investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American
Court of Human Rights stressed the importance of investigation
in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious
manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and be
assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of
the victim or his family or upon their offer of proof, without an
effective search for the truth by the government. [Emphasis
supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR
interpreted the "right to security" not only as a prohibition on
the State against arbitrary deprivation of liberty, but also as
the imposition of a positive duty to afford protection to the
right to liberty. The Court notably quoted the following ECHR
ruling:
[A]ny deprivation of liberty must not only have been effected
in conformity with the substantive and procedural rules of
national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual, it is
incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as
requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct
a prompt effective investigation into an arguable claim that a
person has been taken into custody and has not been seen
since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on
the Writ of Amparo, which the Court made effective on
October 24, 2007. Although the Amparo Rule still has gaps
waiting to be filled through substantive law, as evidenced
primarily by the lack of a concrete definition of "enforced
disappearance," the materials cited above, among others,
provide ample guidance and standards on how, through the
medium of the Amparo Rule, the Court can provide remedies
and protect the constitutional rights to life, liberty and security
that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has
discharged the burden of proving the allegations of the
petition for the Writ of Amparo by the degree of proof
required by the Amparo Rule, we shall discuss briefly the
unique evidentiary difficulties presented by enforced
disappearance cases; these difficulties form part of the setting
that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself – the
party whose involvement is alleged – investigates enforced
disappearances. Past experiences in other jurisdictions show
that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities
of the direct perpetrators.141 Experts note that abductors are
well organized, armed and usually members of the military or
police forces, thus:
The victim is generally arrested by the security forces or by
persons acting under some form of governmental authority. In
many countries the units that plan, implement and execute
the program are generally specialized, highly-secret bodies
within the armed or security forces. They are generally
directed through a separate, clandestine chain of command,
but they have the necessary credentials to avoid or prevent
any interference by the "legal" police forces. These authorities
take their victims to secret detention centers where they
subject them to interrogation and torture without fear of
judicial or other controls.142
In addition, there are usually no witnesses to the crime; if there
are, these witnesses are usually afraid to speak out publicly or
to testify on the disappearance out of fear for their own
lives.143 We have had occasion to note this difficulty in
Secretary of Defense v. Manalo144 when we acknowledged
that "where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them
comes as no surprise."
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of
evidence in an enforced disappearance – i.e., the corpus
delicti or the victim’s body – is usually concealed to effectively
thwart the start of any investigation or the progress of one that
may have begun.145 The problem for the victim’s family is the
State’s virtual monopoly of access to pertinent evidence. The
Inter-American Court of Human Rights (IACHR) observed in the
landmark case of Velasquez Rodriguez146 that inherent to the
practice of enforced disappearance is the deliberate use of
the State’s power to destroy the pertinent evidence. The
IACHR described the concealment as a clear attempt by the
State to commit the perfect crime.147
Third is the element of denial; in many cases, the State
authorities deliberately deny that the enforced
disappearance ever occurred.148 "Deniability" is central to the
policy of enforced disappearances, as the absence of any
proven disappearance makes it easier to escape the
application of legal standards ensuring the victim’s human
rights.149 Experience shows that government officials typically
respond to requests for information about desaparecidos by
saying that they are not aware of any disappearance, that
the missing people may have fled the country, or that their
names have merely been invented.150
These considerations are alive in our minds, as these are the
difficulties we confront, in one form or another, in our
consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof
the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for
a preliminary conference to simplify the issues and determine
the possibility of obtaining stipulations and admissions from the
parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence
Required. – The parties shall establish their claims by substantial
evidence.
The respondent who is a private individual must prove that
ordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent who is a public official or employee must
prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the performance
of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or
evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the petition are
proven by substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied.
[Emphasis supplied]
These characteristics – namely, of being summary and the use
of substantial evidence as the required level of proof (in
contrast to the usual preponderance of evidence or proof
beyond reasonable doubt in court proceedings) – reveal the
clear intent of the framers of the Amparo Rule to have the
equivalent of an administrative proceeding, albeit judicially
conducted, in addressing Amparo situations. The standard of
diligence required – the duty of public officials and employees
to observe extraordinary diligence – point, too, to the
extraordinary measures expected in the protection of
constitutional rights and in the consequent handling and
investigation of extra-judicial killings and enforced
disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only
to properly comply with the substance and form requirements
of a Writ of Amparo petition, as discussed above, and prove
the allegations by substantial evidence. Once a rebuttable
case has been proven, the respondents must then respond
and prove their defenses based on the standard of diligence
required. The rebuttable case, of course, must show that an
enforced disappearance took place under circumstances
showing a violation of the victim’s constitutional rights to life,
liberty or security, and the failure on the part of the
investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial
Relations151 provided the Court its first opportunity to define
the substantial evidence required to arrive at a valid decision
in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. [citations omitted] The
statute provides that ‘the rules of evidence prevailing in courts
of law and equity shall not be controlling.’ The obvious
purpose of this and similar provisions is to free administrative
boards from the compulsion of technical rules so that the
mere admission of matter which would be deemed
incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a
desirable flexibility in administrative procedure does not go so
far as to justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Court’s
first petition for a Writ of Amparo, we recognized that the full
and exhaustive proceedings that the substantial evidence
standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial
relief as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence that
will require full and exhaustive proceedings.[Emphasis
supplied]
Not to be forgotten in considering the evidentiary aspects of
Amparo petitions are the unique difficulties presented by the
nature of enforced disappearances, heretofore discussed,
which difficulties this Court must frontally meet if the Amparo
Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards
appropriate and responsive to the circumstances, without
transgressing the due process requirements that underlie every
proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR –
faced with a lack of direct evidence that the government of
Honduras was involved in Velasquez Rodriguez’
disappearance – adopted a relaxed and informal evidentiary
standard, and established the rule that presumes
governmental responsibility for a disappearance if it can be
proven that the government carries out a general practice of
enforced disappearances and the specific case can be
linked to that practice.154 The IACHR took note of the realistic
fact that enforced disappearances could be proven only
through circumstantial or indirect evidence or by logical
inference; otherwise, it was impossible to prove that an
individual had been made to disappear. It held:
130. The practice of international and domestic courts shows
that direct evidence, whether testimonial or documentary, is
not the only type of evidence that may be legitimately
considered in reaching a decision. Circumstantial evidence,
indicia, and presumptions may be considered, so long as they
lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially
important in allegations of disappearances, because this type
of repression is characterized by an attempt to suppress all
information about the kidnapping or the whereabouts and
fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velásquez
(Manfredo) was carried out by agents who acted under cover
of public authority, the IACHR relied on circumstantial
evidence including the hearsay testimony of Zenaida
Velásquez, the victim’s sister, who described Manfredo’s
kidnapping on the basis of conversations she had with
witnesses who saw Manfredo kidnapped by men in civilian
clothes in broad daylight. She also told the Court that a former
Honduran military official had announced that Manfredo was
kidnapped by a special military squadron acting under orders
of the Chief of the Armed Forces.155 The IACHR likewise
considered the hearsay testimony of a second witness who
asserted that he had been told by a Honduran military officer
about the disappearance, and a third witness who testified
that he had spoken in prison to a man who identified himself
as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under
the unique circumstances that enforced disappearance
cases pose to the courts; to have an effective remedy, the
standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in
the admission and appreciation of evidence, as arbitrariness
entails violation of rights and cannot be used as an effective
counter-measure; we only compound the problem if a wrong
is addressed by the commission of another wrong. On the
other hand, we cannot be very strict in our evidentiary rules
and cannot consider evidence the way we do in the usual
criminal and civil cases; precisely, the proceedings before us
are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow
the substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the
pieces of evidence adduced in their totality, and to consider
any evidence otherwise inadmissible under our usual rules to
be admissible if it is consistent with the admissible evidence
adduced. In other words, we reduce our rules to the most
basic test of reason – i.e., to the relevance of the evidence to
the issue at hand and its consistency with all other pieces of
adduced evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the
consideration of evidence is not at all novel in the Philippine
legal system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness157 is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of
the hearsay testimony of a child describing any act or
attempted act of sexual abuse in any criminal or non-criminal
proceeding, subject to certain prerequisites and the right of
cross-examination by the adverse party. The admission of the
statement is determined by the court in light of specified
subjective and objective considerations that provide sufficient
indicia of reliability of the child witness.158 These requisites for
admission find their counterpart in the present case under the
above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an
enforced disappearance within the meaning of this term
under the UN Declaration we have cited?
The Convention defines enforced disappearance as "the
arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which
place such a person outside the protection of the
law."159Under this definition, the elements that constitute
enforced disappearance are essentially fourfold:160
(a) arrest, detention, abduction or any form of
deprivation of liberty;
(b) carried out by agents of the State or persons or
groups of persons acting with the authorization,
support or acquiescence of the State;
(c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the
disappeared person; and
(d) placement of the disappeared person outside the
protection of the law. [Emphasis supplied]
We find no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that
Tagitis went out of the ASY Pension House after depositing his
room key with the hotel desk and was never seen nor heard of
again. The undisputed conclusion, however, from all
concerned – the petitioner, Tagitis’ colleagues and even the
police authorities – is that Tagistis disappeared under
mysterious circumstances and was never seen again. The
respondent injected the causal element in her petition and
testimony, as we shall discuss below.
We likewise find no direct evidence showing that operatives of
PNP CIDG Zamboanga abducted or arrested Tagitis. If at all,
only the respondent’s allegation that Tagistis was under CIDG
Zamboanga custody stands on record, but it is not supported
by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources
of information as her bases for her allegation that Tagistis had
been placed under government custody (in contrast with
CIDG Zamboanga custody). The first was an unnamed friend
in Zamboanga (later identified as Col. Ancanan), who
occupied a high position in the military and who allegedly
mentioned that Tagitis was in good hands. Nothing came out
of this claim, as both the respondent herself and her witness,
Mrs. Talbin, failed to establish that Col. Ancanan gave them
any information that Tagitis was in government custody. Col.
Ancanan, for his part, admitted the meeting with the
respondent but denied giving her any information about the
disappearance.
The more specific and productive source of information was
Col. Kasim, whom the respondent, together with her witness
Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the
relevant portions of the respondent’s testimony:
Q: Were you able to speak to other military officials regarding
the whereabouts of your husband particularly those in charge
of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military
officer, Col. Casim, told me that my husband is being
abducted [sic] because he is under custodial investigation
because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you during one
of those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because
he said those reports are highly confidential, sir.
Q: Was it read to you then even though you were not
furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential
report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis
supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in
Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because
those [sic] were highly confidential. That is a military report,
ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma’am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati
City, Davao Oriental, ma’am.162
xxxx
Q: When you were told that your husband is in good hands,
what was your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang
meeting with other people na parang mga terorista na mga
tao. Tapos at the end of the report is [sic] under custodial
investigation. So I told him "Colonel, my husband is sick. He is
diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa
naghohold sa asawa ko na bigyan siya ng gamot, ma’am."163
xxxx
Q: You mentioned that you received information that Engineer
Tagitis is being held by the CIDG in Zamboanga, did you go to
CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they
would deny it, ma’am.164
On February 11, 2008, the respondent presented Mrs. Talbin to
corroborate her testimony that her husband was abducted
and held under custodial investigation by the PNP-CIDG
Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City
sometime November 24, 2007, who was with you when you
went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that
time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp
Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that
time?
A: The first time we met with [him] I asked him if he knew of the
exact location, if he can furnish us the location of Engr. Tagitis.
And he was reading this report. He told us that Engr. Tagitis is in
good hands. He is with the military, but he is not certain
whether he is with the AFP or PNP. He has this serious case. He
was charged of terrorism because he was under surveillance
from January 2007 up to the time that he was abducted. He
told us that he was under custodial investigation. As I’ve said
earlier, he was seen under surveillance from January. He was
seen talking to Omar Patik, a certain Santos of Bulacan who is
also a Balik Islam and charged with terrorism. He was seen
carrying boxes of medicines. Then we asked him how long will
he be in custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that
report because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in
document form, in a piece of paper or was it in the computer
or what?
A: As far as I can see it, sir, it is written in white bond paper. I
don’t know if it was computerized but I’m certain that it was
typewritten. I’m not sure if it used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by
line or he was reading in a summary form?
A: Sometimes he was glancing to the report and talking to us,
sir.165
xxxx
Q: Were you informed as to the place where he was being
kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he
mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited because
that raw information that he was reading to us [sic] after the
custodial investigation, Engineer Tagitis will be released.
[Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and
her friends, and that he provided them information based on
the input of an unnamed asset. He simply claimed in his
testimony that the "informal letter" he received from his
informant in Sulu did not indicate that Tagitis was in the
custody of the CIDG. He also stressed that the information he
provided the respondent was merely a "raw report" from
"barangay intelligence" that still needed confirmation and
"follow up" as to its veracity.167
To be sure, the respondent’s and Mrs. Talbin’s testimonies were
far from perfect, as the petitioners pointed out. The
respondent mistakenly characterized Col. Kasim as a "military
officer" who told her that "her husband is being abducted
because he is under custodial investigation because he is
allegedly ‘parang liason ng J.I.’" The petitioners also noted
that "Mrs. Talbin’s testimony imputing certain statements to Sr.
Supt. Kasim that Engr. Tagitis is with the military, but he is not
certain whether it is the PNP or AFP is not worthy of belief, since
Sr. Supt. Kasim is a high ranking police officer who would
certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however,
what appears clear to us is that the petitioners never really
steadfastly disputed or presented evidence to refute the
credibility of the respondent and her witness, Mrs. Talbin. The
inconsistencies the petitioners point out relate, more than
anything else, to details that should not affect the credibility of
the respondent and Mrs. Talbin; the inconsistencies are not on
material points.168 We note, for example, that these witnesses
are lay people in so far as military and police matters are
concerned, and confusion between the police and the
military is not unusual. As a rule, minor inconsistencies such as
these indicate truthfulness rather than prevarication169and only
tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail;
the latter cannot but generate suspicion that the material
circumstances they testified to were integral parts of a well
thought of and prefabricated story.170
Based on these considerations and the unique evidentiary
situation in enforced disappearance cases, we hold it duly
established that Col. Kasim informed the respondent and her
friends, based on the informant’s letter, that Tagitis, reputedly
a liaison for the JI and who had been under surveillance since
January 2007, was "in good hands" and under custodial
investigation for complicity with the JI after he was seen
talking to one Omar Patik and a certain "Santos" of Bulacan, a
"Balik Islam" charged with terrorism. The respondent’s and Mrs.
Talbin’s testimonies cannot simply be defeated by Col. Kasim’s
plain denial and his claim that he had destroyed his
informant’s letter, the critical piece of evidence that supports
or negates the parties’ conflicting claims. Col. Kasim’s
admitted destruction of this letter – effectively, a suppression
of this evidence – raises the presumption that the letter, if
produced, would be proof of what the respondent
claimed.171 For brevity, we shall call the evidence of what Col.
Kasim reported to the respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we
can accept this evidence, in lieu of direct evidence, as proof
that the disappearance of Tagitis was due to action with
government participation, knowledge or consent and that he
was held for custodial investigation. We note in this regard that
Col. Kasim was never quoted to have said that the custodial
investigation was by the CIDG Zamboanga. The Kasim
evidence only implies government intervention through the
use of the term "custodial investigation," and does not at all
point to CIDG Zamboanga as Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of
hearsay evidence – i.e., evidence whose probative value is
not based on the personal knowledge of the witnesses (the
respondent, Mrs. Talbin and Col. Kasim himself) but on the
knowledge of some other person not on the witness stand (the
informant).172
To say that this piece of evidence is incompetent and
inadmissible evidence of what it substantively states is to
acknowledge – as the petitioners effectively suggest – that in
the absence of any direct evidence, we should simply dismiss
the petition. To our mind, an immediate dismissal for this
reason is no different from a statement that the Amparo Rule –
despite its terms – is ineffective, as it cannot allow for the
special evidentiary difficulties that are unavoidably present in
Amparo situations, particularly in extrajudicial killings and
enforced disappearances. The Amparo Rule was not
promulgated with this intent or with the intent to make it a
token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using
and profiting from local and international experiences in
extrajudicial killings and enforced disappearances, as the
situation may require. Consequently, we have no choice but
to meet the evidentiary difficulties inherent in enforced
disappearances with the flexibility that these difficulties
demand.1avvphi1
To give full meaning to our Constitution and the rights it
protects, we hold that, as in Velasquez, we should at least
take a close look at the available evidence to determine the
correct import of every piece of evidence – even of those
usually considered inadmissible under the general rules of
evidence – taking into account the surrounding circumstances
and the test of reason that we can use as basic minimum
admissibility requirement. In the present case, we should at
least determine whether the Kasim evidence before us is
relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.
The evidence about Tagitis’ personal circumstances
surrounded him with an air of mystery. He was reputedly a
consultant of the World Bank and a Senior Honorary Counselor
for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated
by his request to Kunnong for the purchase of a return ticket to
Zamboanga the day after he arrived in Jolo. Nothing in the
records indicates the purpose of his overnight sojourn in Jolo. A
colleague in the IDB, Prof. Matli, early on informed the Jolo
police that Tagitis may have taken funds given to him in trust
for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although
he confirmed that the IDB was seeking assistance in locating
funds of IDB scholars deposited in Tagitis’ personal account.
Other than these pieces of evidence, no other information
exists in the records relating to the personal circumstances of
Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was
taken away by "burly men believed to be police intelligence
operatives," no evidence whatsoever was introduced to
support this allegation. Thus, the available direct evidence is
that Tagitis was last seen at 12.30 p.m. of October 30, 2007 –
the day he arrived in Jolo – and was never seen again.
The Kasim evidence assumes critical materiality given the
dearth of direct evidence on the above aspects of the case,
as it supplies the gaps that were never looked into and
clarified by police investigation. It is the evidence, too, that
colors a simple missing person report into an enforced
disappearance case, as it injects the element of participation
by agents of the State and thus brings into question how the
State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on
the part of the respondent, characterize the attempts to
locate Tagitis. Initially in Jolo, the police informed Kunnong
that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever
offered on whether there was active Jolo police investigation
and how and why the Jolo police arrived at this conclusion.
The respondent’s own inquiry in Jolo yielded the answer that
he was not missing but was with another woman somewhere.
Again, no evidence exists that this explanation was arrived at
based on an investigation. As already related above, the
inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the
inquiry from Col. Kasim that yielded positive results. Col.
Kasim’s story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without
identifying his abductor/s or the party holding him in custody.
The more significant part of Col. Kasim’s story is that the
abduction came after Tagitis was seen talking with Omar Patik
and a certain Santos of Bulacan, a "Balik Islam" charged with
terrorism. Mrs. Talbin mentioned, too, that Tagitis was being
held at Talipapao, Sulu. None of the police agencies
participating in the investigation ever pursued these leads.
Notably, Task Force Tagitis to which this information was
relayed did not appear to have lifted a finger to pursue these
aspects of the case.
More denials were manifested in the Returns on the writ to the
CA made by the petitioners. Then PNP Chief Gen. Avelino I.
Razon merely reported the directives he sent to the ARMM
Regional Director and the Regional Chief of the CIDG on
Tagitis, and these reports merely reiterated the open-ended
initial report of the disappearance. The CIDG directed a
search in all of its divisions with negative results. These, to the
PNP Chief, constituted the exhaustion "of all possible efforts."
PNP-CIDG Chief General Edgardo M. Doromal, for his part,
also reported negative results after searching "all divisions and
departments [of the CIDG] for a person named Engr. Morced
N. Tagitis . . . and after a diligent and thorough research,
records show that no such person is being detained in the
CIDG or any of its department or divisions." PNP-PACER Chief
PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional
Director PC Superintendent Joel R. Goltiao did no better in
their affidavits-returns, as they essentially reported the results of
their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully
tested when the CA constituted Task Force Tagitis, with
specific directives on what to do. The negative results
reflected in the Returns on the writ were again replicated
during the three hearings the CA scheduled. Aside from the
previously mentioned "retraction" that Prof. Matli made to
correct his accusation that Tagitis took money held in trust for
students, PS Supt. Ajirim reiterated in his testimony that the
CIDG consistently denied any knowledge or complicity in any
abduction and said that there was no basis to conclude that
the CIDG or any police unit had anything to do with the
disappearance of Tagitis; he likewise considered it premature
to conclude that Tagitis simply ran away with the money in his
custody. As already noted above, the Task Force notably did
not pursue any investigation about the personal
circumstances of Tagitis, his background in relation to the IDB
and the background and activities of this Bank itself, and the
reported sighting of Tagistis with terrorists and his alleged
custody in Talipapao, Sulu. No attempt appears to have ever
been made to look into the alleged IDB funds that Tagitis held
in trust, or to tap any of the "assets" who are indispensable in
investigations of this nature. These omissions and negative
results were aggravated by the CA findings that it was only as
late as January 28, 2008 or three months after the
disappearance that the police authorities requested for clear
pictures of Tagitis. Col. Kasim could not attend the trial
because his subpoena was not served, despite the fact that
he was designated as Ajirim’s replacement in the latter’s last
post. Thus, Col. Kasim was not then questioned. No
investigation – even an internal one – appeared to have been
made to inquire into the identity of Col. Kasim’s "asset" and
what he indeed wrote.
We glean from all these pieces of evidence and
developments a consistency in the government’s denial of
any complicity in the disappearance of Tagitis, disrupted only
by the report made by Col. Kasim to the respondent at Camp
Katitipan. Even Col. Kasim, however, eventually denied that
he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive trait
that runs through these developments is the government’s
dismissive approach to the disappearance, starting from the
initial response by the Jolo police to Kunnong’s initial reports of
the disappearance, to the responses made to the respondent
when she herself reported and inquired about her husband’s
disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation
was at best haphazard since the authorities were looking for a
man whose picture they initially did not even secure. The
returns and reports made to the CA fared no better, as the
CIDG efforts themselves were confined to searching for
custodial records of Tagitis in their various departments and
divisions. To point out the obvious, if the abduction of Tagitis
was a "black" operation because it was unrecorded or
officially unauthorized, no record of custody would ever
appear in the CIDG records; Tagitis, too, would not be
detained in the usual police or CIDG detention places. In sum,
none of the reports on record contains any meaningful results
or details on the depth and extent of the investigation made.
To be sure, reports of top police officials indicating the
personnel and units they directed to investigate can never
constitute exhaustive and meaningful investigation, or equal
detailed investigative reports of the activities undertaken to
search for Tagitis. Indisputably, the police authorities from the
very beginning failed to come up to the extraordinary
diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim’s
disclosure, made in an unguarded moment, unequivocally
point to some government complicity in the disappearance.
The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why
would the government and its officials engage in their chorus
of concealment if the intent had not been to deny what they
already knew of the disappearance? Would not an in-depth
and thorough investigation that at least credibly determined
the fate of Tagitis be a feather in the government’s cap under
the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the
Kasim evidence, already establish a concrete case of
enforced disappearance that the Amparo Rule covers. From
the prism of the UN Declaration, heretofore cited and
quoted,173the evidence at hand and the developments in this
case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent
and unfounded government denials and haphazard handling.
The disappearance as well effectively placed Tagitis outside
the protection of the law – a situation that will subsist unless this
Court acts.
This kind of fact situation and the conclusion reached are not
without precedent in international enforced disappearance
rulings. While the facts are not exactly the same, the facts of
this case run very close to those of Timurtas v. Turkey,174 a case
decided by ECHR. The European tribunal in that case acted
on the basis of the photocopy of a "post-operation report" in
finding that Abdulvahap Timurtas (Abdulvahap) was
abducted and later detained by agents (gendarmes) of the
government of Turkey. The victim's father in this case brought a
claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights
to liberty and security of a person (Article 5). The applicant
contended that on August 14, 1993, gendarmes
apprehended his son, Abdulvahap for being a leader of the
Kurdish Workers’ Party (PKK) in the Silopi region. The petition
was filed in southeast Turkey nearly six and one half years after
the apprehension. According to the father, gendarmes first
detained Abdulvahap and then transferred him to another
detainment facility. Although there was no eyewitness
evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of
events, including a photocopy of a post-operation report
signed by the commander of gendarme operations in Silopi,
Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during
detention where he was accused of being a leader of the PKK
in the Silopi region. On this basis, Turkey was held responsible
for Abdulvahap’s enforced disappearance.
Following the lead of this Turkish experience - adjusted to the
Philippine legal setting and the Amparo remedy this Court has
established, as applied to the unique facts and developments
of this case – we believe and so hold that the government in
general, through the PNP and the PNP-CIDG, and in particular,
the Chiefs of these organizations together with Col. Kasim,
should be held fully accountable for the enforced
disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of
Republic Act No. 6975, otherwise known as the "PNP
Law,"175 specifies the PNP as the governmental office with the
mandate "to investigate and prevent crimes, effect the arrest
of criminal offenders, bring offenders to justice and assist in
their prosecution." The PNP-CIDG, as Col. Jose Volpane Pante
(then Chief of CIDG Region 9) testified, is the "investigative
arm" of the PNP and is mandated to "investigate and
prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous
crimes."176 Under the PNP organizational structure, the PNP-
CIDG is tasked to investigate all major crimes involving
violations of the Revised Penal Code and operates against
organized crime groups, unless the President assigns the case
exclusively to the National Bureau of Investigation (NBI).177 No
indication exists in this case showing that the President ever
directly intervened by assigning the investigation of Tagitis’
disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and
members were the ones who were remiss in their duties when
the government completely failed to exercise the extral'>To
fully enforce the Amparo remedy, we refer this case back to
the CA for appropriate proceedings directed at the
monitoring of the PNP and the PNP-CIDG investigations and
actions, and the validation of their results through hearings the
CA may deem appropriate to conduct. For purposes of these
investigations, the PNP/PNP-CIDG shall initially present to the
CA a plan of action for further investigation, periodically
reporting the detailed results of its investigation to the CA for its
consideration and action. On behalf of this Court, the CA shall
pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this
Decision and as further CA hearings may indicate; the
petitioners’ submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing
its actions and recommendations, copy furnished the
petitioners and the respondent, with the first report due at the
end of the first quarter counted from the finality of this
Decision. The PNP and the PNP-CIDG shall have one (1) full
year to undertake their investigation. The CA shall submit its full
report for the consideration of this Court at the end of the 4th
quarter counted from the finality of this Decision.
particularly, the referral back to and monitoring by the CA –
are specific to this case and are not standard remedies that
can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General
Alexander Yano, Commanding General, Philippine Army, and
General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet,
Zamboanga City, is hereby AFFIRMED.
SO ORDERED.

WHEREFORE, premises considered, we DENY the petitioners’

petition for review on certiorari for lack of merit, and AFFIRM
the decision of the Court of Appeals dated March 7, 2008
under the following terms:

a. Recognition that the disappearance of Engineer

Morced N. Tagitis is an enforced disappearance
covered by the Rule on the Writ of Amparo;

b. Without any specific pronouncement on exact

authorship and responsibility, declaring the
government (through the PNP and the PNP-CIDG)
and Colonel Julasirim Ahadin Kasim accountable for
the enforced disappearance of Engineer Morced N.
Tagitis;

c. Confirmation of the validity of the Writ of Amparo

the Court of Appeals issued;

d. Holding the PNP, through the PNP Chief, and the

PNP-CIDG, through its Chief, directly responsible for
the disclosure of material facts known to the
government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for
the conduct of proper investigations using
extraordinary diligence, with the obligation to show
investigation results acceptable to this Court;

e. Ordering Colonel Julasirim Ahadin Kasim impleaded

in this case and holding him accountable with the
obligation to disclose information known to him and to
his "assets" in relation with the enforced
disappearance of Engineer Morced N. Tagitis;

f. Referring this case back to the Court of Appeals for

appropriate proceedings directed at the monitoring
of the PNP and PNP-CIDG investigations, actions and
the validation of their results; the PNP and the PNP-
CIDG shall initially present to the Court of Appeals a
plan of action for further investigation, periodically
reporting their results to the Court of Appeals for
consideration and action;

g. Requiring the Court of Appeals to submit to this

Court a quarterly report with its recommendations,
copy furnished the incumbent PNP and PNP-CIDG
Chiefs as petitioners and the respondent, with the first
report due at the end of the first quarter counted from
the finality of this Decision;

h. The PNP and the PNP-CIDG shall have one (1) full
year to undertake their investigations; the Court of
Appeals shall submit its full report for the consideration
of this Court at the end of the 4th quarter counted
from the finality of this Decision;

These directives and those of the Court of Appeals’ made

pursuant to this Decision shall be given to, and shall be directly
enforceable against, whoever may be the incumbent Chiefs
of the Philippine National Police and its Criminal Investigation
and Detection Group, under pain of contempt from this Court
when the initiatives and efforts at disclosure and investigation
constitute less than the extraordinary diligence that the Rule
on the Writ of Amparo and the circumstances of this case
demand. Given the unique nature of Amparo cases and their
varying attendant circumstances, these directives –
 PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B.
NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C.
LAMANGAN in their behalf and on behalf of the Class Plaintiffs
in Class Action No. MDL 840, United States District Court of
Hawaii, Petitioner,
vs.
HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding
Judge of Branch 137, Regional Trial Court, Makati City, and the
ESTATE OF FERDINAND E. MARCOS, through its court appointed
legal representatives in Class Action MDL 840, United States
District Court of Hawaii, namely: Imelda R. Marcos and
Ferdinand Marcos, Jr., Respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and
we have yet to finish weeding out its bitter crop. While the
restoration of freedom and the fundamental structures and
processes of democracy have been much lauded, according
to a significant number, the changes, however, have not
sufficiently healed the colossal damage wrought under the
oppressive conditions of the martial law period. The cries of
justice for the tortured, the murdered, and
the desaparecidos arouse outrage and sympathy in the hearts
of the fair-minded, yet the dispensation of the appropriate
relief due them cannot be extended through the same
caprice or whim that characterized the ill-wind of martial rule.
The damage done was not merely personal but institutional,
and the proper rebuke to the iniquitous past has to involve the
award of reparations due within the confines of the restored
rule of law.
The petitioners in this case are prominent victims of human
rights violations1 who, deprived of the opportunity to directly
confront the man who once held absolute rule over this
country, have chosen to do battle instead with the earthly
representative, his estate. The clash has been for now
interrupted by a trial court ruling, seemingly comported to
legal logic, that required the petitioners to pay a whopping
filing fee of over Four Hundred Seventy-Two Million Pesos
(P472,000,000.00) in order that they be able to enforce a
judgment awarded them by a foreign court. There is an
understandable temptation to cast the struggle within the
simplistic confines of a morality tale, and to employ short-cuts
to arrive at what might seem the desirable solution. But easy,
reflexive resort to the equity principle all too often leads to a
result that may be morally correct, but legally wrong.
Nonetheless, the application of the legal principles involved in
this case will comfort those who maintain that our substantive
and procedural laws, for all their perceived ambiguity and
susceptibility to myriad interpretations, are inherently fair and
just. The relief sought by the petitioners is expressly mandated
by our laws and conforms to established legal principles. The
granting of this petition for certiorari is warranted in order to
correct the legally infirm and unabashedly unjust ruling of the
respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a
complaint was filed with the United States District Court (US
District Court), District of Hawaii, against the Estate of former
Philippine President Ferdinand E. Marcos (Marcos Estate). The
action was brought forth by ten Filipino citizens 2 who each
alleged having suffered human rights abuses such as arbitrary
detention, torture and rape in the hands of police or military
forces during the Marcos regime.3 The Alien Tort Act was
invoked as basis for the US District Court's jurisdiction over the
complaint, as it involved a suit by aliens for tortious violations of
international law.4 These plaintiffs brought the action on their
own behalf and on behalf of a class of similarly situated
individuals, particularly consisting of all current civilian citizens
of the Philippines, their heirs and beneficiaries, who between
1972 and 1987 were tortured, summarily executed or had
disappeared while in the custody of military or paramilitary
groups. Plaintiffs alleged that the class consisted of
approximately ten thousand (10,000) members; hence, joinder
of all these persons was impracticable.
The institution of a class action suit was warranted under Rule
23(a) and (b)(1)(B) of the US Federal Rules of Civil Procedure,
the provisions of which were invoked by the plaintiffs.
Subsequently, the US District Court certified the case as a class
action and created three (3) sub-classes of torture, summary
execution and disappearance victims.5Trial ensued, and
subsequently a jury rendered a verdict and an award of
compensatory and exemplary damages in favor of the
plaintiff class. Then, on 3 February 1995, the US District Court,
presided by Judge Manuel L. Real, rendered a Final
Judgment (Final Judgment) awarding the plaintiff class a total
of One Billion Nine Hundred Sixty Four Million Five Thousand
Eight Hundred Fifty Nine Dollars and Ninety Cents
($1,964,005,859.90). The Final Judgment was eventually
affirmed by the US Court of Appeals for the Ninth Circuit, in a
decision rendered on 17 December 1996.6
On 20 May 1997, the present petitioners filed Complaint with
the Regional Trial Court, City of Makati (Makati RTC) for the
enforcement of the Final Judgment. They alleged that they
are members of the plaintiff class in whose favor the US District
Court awarded damages.7 They argued that since the Marcos
Estate failed to file a petition for certiorari with the US Supreme
Court after the Ninth Circuit Court of Appeals had affirmed
the Final Judgment, the decision of the US District Court had
become final and executory, and hence should be
recognized and enforced in the Philippines, pursuant to
Section 50, Rule 39 of the Rules of Court then in force.8
On 5 February 1998, the Marcos Estate filed a motion to
dismiss, raising, among others, the non-payment of the correct
filing fees. It alleged that petitioners had only paid Four
Hundred Ten Pesos (P410.00) as docket and filing fees,
notwithstanding the fact that they sought to enforce a
monetary amount of damages in the amount of over Two and
a Quarter Billion US Dollars (US$2.25 Billion). The Marcos Estate
cited Supreme Court Circular No. 7, pertaining to the proper
computation and payment of docket fees. In response, the
petitioners claimed that an action for the enforcement of a
foreign judgment is not capable of pecuniary estimation;
hence, a filing fee of only Four Hundred Ten Pesos (P410.00)
was proper, pursuant to Section 7(c) of Rule 141.9
On 9 September 1998, respondent Judge Santiago Javier
Ranada10 of the Makati RTC issued the subject Orderdismissing
the complaint without prejudice. Respondent judge opined
that contrary to the petitioners' submission, the subject matter
of the complaint was indeed capable of pecuniary
estimation, as it involved a judgment rendered by a foreign
court ordering the payment of definite sums of money,
allowing for easy determination of the value of the foreign
judgment. On that score, Section 7(a) of Rule 141 of the Rules
of Civil Procedure would find application, and the RTC
estimated the proper amount of filing fees was approximately
Four Hundred Seventy Two Million Pesos, which obviously had
not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration,
which Judge Ranada denied in an Order dated 28 July 1999.
From this denial, petitioners filed a Petition for Certiorari under
Rule 65 assailing the twin orders of respondent judge.11 They
prayed for the annulment of the questioned orders, and an
order directing the reinstatement of Civil Case No. 97-1052
and the conduct of appropriate proceedings thereon.
Petitioners submit that their action is incapable of pecuniary
estimation as the subject matter of the suit is the enforcement
of a foreign judgment, and not an action for the collection of
a sum of money or recovery of damages. They also point out
that to require the class plaintiffs to pay Four Hundred Seventy
Two Million Pesos (P472,000,000.00) in filing fees would negate
and render inutile the liberal construction ordained by the
Rules of Court, as required by Section 6, Rule 1 of the Rules of
Civil Procedure, particularly the inexpensive disposition of
every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of the
Constitution, which provides that "Free access to the courts
and quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty," a
mandate which is essentially defeated by the required
exorbitant filing fee. The adjudicated amount of the filing fee,
as arrived at by the RTC, was characterized as indisputably
unfair, inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to
intervene in this case.12 It urged that the petition be granted
and a judgment rendered, ordering the enforcement and
execution of the District Court judgment in accordance with
Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For the
CHR, the Makati RTC erred in interpreting the action for the
execution of a foreign judgment as a new case, in violation of
the principle that once a case has been decided between
the same parties in one country on the same issue with finality,
it can no longer be relitigated again in another country.13 The
CHR likewise invokes the principle of comity, and of vested
rights.
The Court's disposition on the issue of filing fees will prove a
useful jurisprudential guidepost for courts confronted with
actions enforcing foreign judgments, particularly those lodged
against an estate. There is no basis for the issuance a
limited pro hac vice ruling based on the special circumstances
of the petitioners as victims of martial law, or on the
emotionally-charged allegation of human rights abuses.
Petitioners' complaint may have been lodged against an
estate, but it is clearly based on a judgment, the Final
Judgment of the US District Court. The provision does not make
any distinction between a local judgment and a foreign
judgment, and where the law does not distinguish, we shall
not distinguish.
A reading of Section 7 in its entirety reveals several instances
wherein the filing fee is computed on the basis of the amount
of the relief sought, or on the value of the property in litigation.
The filing fee for requests for extrajudicial foreclosure of
mortgage is based on the amount of indebtedness or the
mortgagee's claim.14 In special proceedings involving
properties such as for the allowance of wills, the filing fee is
again based on the value of the property.15 The aforecited
rules evidently have no application to petitioners' complaint.
Petitioners rely on Section 7(b), particularly the proviso on
actions where the value of the subject matter cannot be
estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing

1. Actions where the value

An examination of Rule 141 of the Rules of Court readily
evinces that the respondent judge ignored the clear letter of
the law when he concluded that the filing fee be computed of the subject matter
based on the total sum claimed or the stated value of the
property in litigation. cannot be estimated --- P 600.00

In dismissing the complaint, the respondent judge relied on 2. Special civil actions except
Section 7(a), Rule 141 as basis for the computation of the filing
fee of over P472 Million. The provision states: judicial foreclosure which

SEC. 7. Clerk of Regional Trial Court.- shall be governed by

(a) For filing an action or a permissive paragraph (a) above --- P 600.00
counterclaim or money claim against an
estate not based on judgment, or for filing with
leave of court a third-party, fourth-party, etc., 3. All other actions not
complaint, or a complaint in intervention, and
for all clerical services in the same time, if the involving property --- P 600.00
total sum claimed, exclusive of interest, or the
started value of the property in litigation, is: In a real action, the assessed value of the property, or if there
is none, the estimated value, thereof shall be alleged by the
claimant and shall be the basis in computing the fees.
1. Less than P 100,00.00 – P 500.00

2. P 100,000.00 or more but less – P 800.00 It is worth noting that the provision also provides that in real
than P 150,000.00 actions, the assessed value or estimated value of the property
shall be alleged by the claimant and shall be the basis in
3. P 150,000.00 or more but less – P 1,000.00 computing the fees. Yet again, this provision does not apply in
than P 200,000.00 the case at bar. A real action is one where the plaintiff seeks
the recovery of real property or an action affecting title to or
4. P 200,000.00 or more but less – P 1,500.00 recovery of possession of real property.16 Neither the complaint
than P 250,000.00 nor the award of damages adjudicated by the US District
Court involves any real property of the Marcos Estate.
5. P 250,000.00 or more but less – P 1,750.00
than P 300,00.00 Thus, respondent judge was in clear and serious error when he
concluded that the filing fees should be computed on the
6. P 300,000.00 or more but not more – P 2,000.00 basis of the schematic table of Section 7(a), as the action
than P 400,000.00 involved pertains to a claim against an estate based on
judgment. What provision, if any, then should apply in
7. P 350,000.00 or more but not more than – P 2,250.00 determining the filing fees for an action to enforce a foreign
P400,000.00 judgment?

8. For each P 1,000.00 in excess – P 10.00

To resolve this question, a proper understanding is required on
of P 400,000.00
the nature and effects of a foreign judgment in this jurisdiction.

(Emphasis supplied)
Obviously, the above-quoted provision covers, on one hand,
ordinary actions, permissive counterclaims, third-party, etc.
complaints and complaints-in-interventions, and on the other,
money claims against estates which are not based on
judgment. Thus, the relevant question for purposes of the
present petition is whether the action filed with the lower court
is a "money claim against an estate not based on judgment."
The rules of comity, utility and convenience of nations have
established a usage among civilized states by which final
judgments of foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious under
certain conditions that may vary in different countries.17 This
principle was prominently affirmed in the leading American
case of Hilton v. Guyot18 and expressly recognized in our
jurisprudence beginning with Ingenholl v. Walter E. Olsen &
Co.19 The conditions required by the Philippines for recognition
and enforcement of a foreign judgment were originally
contained in Section 311 of the Code of Civil Procedure,
which was taken from the California Code of Civil Procedure
which, in turn, was derived from the California Act of March
11, 1872.20 Remarkably, the procedural rule now outlined in
Section 48, Rule 39 of the Rules of Civil Procedure has
remained unchanged down to the last word in nearly a
century. Section 48 states:
SEC. 48. Effect of foreign judgments. — The effect
of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as
follows:
(a) In case of a judgment upon a specific
thing, the judgment is conclusive upon the
title to the thing;
(b) In case of a judgment against a person,
the judgment is presumptive evidence of a
right as between the parties and their
successors in interest by a subsequent title;
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake
of law or fact.
There is an evident distinction between a foreign judgment in
an action in rem and one in personam. For an action in
rem, the foreign judgment is deemed conclusive upon the title
to the thing, while in an action in personam, the foreign
judgment is presumptive, and not conclusive, of a right as
between the parties and their successors in interest by a
subsequent title.21 However, in both cases, the foreign
judgment is susceptible to impeachment in our local courts on
the grounds of want of jurisdiction or notice to the
party,22 collusion, fraud,23 or clear mistake of law or fact.24 Thus,
the party aggrieved by the foreign judgment is entitled to
defend against the enforcement of such decision in the local
forum. It is essential that there should be an opportunity to
challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy.25
It is clear then that it is usually necessary for an action to be
filed in order to enforce a foreign judgment26 , even if such
judgment has conclusive effect as in the case of in
rem actions, if only for the purpose of allowing the losing party
an opportunity to challenge the foreign judgment, and in
order for the court to properly determine its
efficacy.27Consequently, the party attacking a foreign
judgment has the burden of overcoming the presumption of
its validity.28
The rules are silent as to what initiatory procedure must be
undertaken in order to enforce a foreign judgment in the
Philippines. But there is no question that the filing of a civil
complaint is an appropriate measure for such purpose. A civil
action is one by which a party sues another for the
enforcement or protection of a right,29 and clearly an action
to enforce a foreign judgment is in essence a vindication of a
right prescinding either from a "conclusive judgment upon title"
or the "presumptive evidence of a right." 30 Absent perhaps a
statutory grant of jurisdiction to a quasi-judicial body, the claim
for enforcement of judgment must be brought before the
regular courts.31
There are distinctions, nuanced but discernible, between the
cause of action arising from the enforcement of a foreign
judgment, and that arising from the facts or allegations that
occasioned the foreign judgment. They may pertain to the
same set of facts, but there is an essential difference in the
right-duty correlatives that are sought to be vindicated. For
example, in a complaint for damages against a tortfeasor, the
cause of action emanates from the violation of the right of the
complainant through the act or omission of the respondent.
On the other hand, in a complaint for the enforcement of a
foreign judgment awarding damages from the same
tortfeasor, for the violation of the same right through the same
manner of action, the cause of action derives not from the
tortious act but from the foreign judgment itself.
More importantly, the matters for proof are different. Using the
above example, the complainant will have to establish before
the court the tortious act or omission committed by the
tortfeasor, who in turn is allowed to rebut these factual
allegations or prove extenuating circumstances. Extensive
litigation is thus conducted on the facts, and from there the
right to and amount of damages are assessed. On the other
hand, in an action to enforce a foreign judgment, the matter
left for proof is the foreign judgment itself, and not the facts
from which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are
generally restricted to a review of jurisdiction of the foreign
court, the service of personal notice, collusion, fraud, or
mistake of fact or law. The limitations on review is in
consonance with a strong and pervasive policy in all legal
systems to limit repetitive litigation on claims and
issues.32Otherwise known as the policy of preclusion, it seeks to
protect party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to insure
that the task of courts not be increased by never-ending
litigation of the same disputes, and – in a larger sense – to
promote what Lord Coke in the Ferrer's Case of 1599 stated to
be the goal of all law: "rest and quietness."33 If every judgment
of a foreign court were reviewable on the merits, the plaintiff
would be forced back on his/her original cause of action,
rendering immaterial the previously concluded litigation.34
Petitioners appreciate this distinction, and rely upon it to
support the proposition that the subject matter of the
complaintthe enforcement of a foreign judgmentis
incapable of pecuniary estimation. Admittedly the
proposition, as it applies in this case, is counter-intuitive, and
thus deserves strict scrutiny. For in all practical intents and
purposes, the matter at hand is capable of pecuniary
estimation, down to the last cent. In the assailed Order, the
respondent judge pounced upon this point without
equivocation:
The Rules use the term "where the value of the subject
matter cannot be estimated." The subject matter of
the present case is the judgment rendered by the
foreign court ordering defendant to pay plaintiffs
definite sums of money, as and for compensatory
damages. The Court finds that the value of the foreign
judgment can be estimated; indeed, it can even be
easily determined. The Court is not minded to
distinguish between the enforcement of a judgment
and the amount of said judgment, and separate the
two, for purposes of determining the correct filing fees.
Similarly, a plaintiff suing on promissory note for P1
million cannot be allowed to pay only P400 filing
fees (sic), on the reasoning that the subject matter of
his suit is not the P1 million, but the enforcement of the
promissory note, and that the value of such
"enforcement" cannot be estimated.35
The jurisprudential standard in gauging whether the subject
matter of an action is capable of pecuniary estimation is well-
entrenched. The Marcos Estate cites Singsong v. Isabela
Sawmill and Raymundo v. Court of Appeals, which ruled:
[I]n determining whether an action is one the subject
matter of which is not capable of pecuniary
estimation this Court has adopted the criterion of first
ascertaining the nature of the principal action or
remedy sought. If it is primarily for the recovery of a
sum of money, the claim is considered capable of
pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would
depend on the amount of the claim. However, where
the basic issue is something other than the right to
recover a sum of money, where the money claim is
purely incidental to, or a consequence of, the
principal relief sought, this Court has considered such
actions as cases where the subject of the litigation
may not be estimated in terms of money, and are
 cognizable exclusively by courts of first instance (now
Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL
Reyes in Lapitan v. Scandia,36 from which the rule
in Singsong and Raymundo actually derives, but which
incorporates this additional nuance omitted in the latter cases:
xxx However, where the basic issue is something other
than the right to recover a sum of money, where the
money claim is purely incidental to, or a consequence
of, the principal relief sought, like in suits to have the
defendant perform his part of the contract (specific
performance) and in actions for support, or for
annulment of judgment or to foreclose a
mortgage, this Court has considered such actions as
cases where the subject of the litigation may not be
estimated in terms of money, and are cognizable
exclusively by courts of first instance.37
Petitioners go on to add that among the actions the Court has
recognized as being incapable of pecuniary estimation
include legality of conveyances and money deposits,38 validity
of a mortgage,39 the right to support,40validity of
documents,41 rescission of contracts,42 specific
performance, and validity or annulment of judgments.44 It is
43
urged that an action for enforcement of a foreign judgment
belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident
that while the subject matter of the action is undoubtedly the
enforcement of a foreign judgment, the effect of a
providential award would be the adjudication of a sum of
money. Perhaps in theory, such an action is primarily for "the
enforcement of the foreign judgment," but there is a certain
obtuseness to that sort of argument since there is no denying
that the enforcement of the foreign judgment will necessarily
result in the award of a definite sum of money.
But before we insist upon this conclusion past beyond the
point of reckoning, we must examine its possible ramifications.
Petitioners raise the point that a declaration that an action for
enforcement of foreign judgment may be capable of
pecuniary estimation might lead to an instance wherein a first
level court such as the Municipal Trial Court would have
jurisdiction to enforce a foreign judgment. But under the
statute defining the jurisdiction of first level courts, B.P. 129,
such courts are not vested with jurisdiction over actions for the
enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts
in civil cases. — Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including
the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or
amount of the demand does not exceed One
hundred thousand pesos (P100,000.00) or, in Metro
Manila where such personal property, estate, or
amount of the demand does not exceed Two
hundred thousand pesos (P200,000.00) exclusive of
interest damages of whatever kind, attorney's fees,
litigation expenses, and costs, the amount of which
must be specifically alleged: Provided, That where
there are several claims or causes of action between
the same or different parties, embodied in the same
complaint, the amount of the demand shall be the
totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out
of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, That when, in
such cases, the defendant raises the question of
ownership in his pleadings and the question of
possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions
which involve title to, or possession of, real property, or
any interest therein where the assessed value of the
property or interest therein does not exceed Twenty
thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed
Fifty thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That value of such
property shall be determined by the assessed value of
the adjacent lots.45
Section 33 of B.P. 129 refers to instances wherein the cause of
action or subject matter pertains to an assertion of rights and
interests over property or a sum of money. But as earlier
pointed out, the subject matter of an action to enforce a
foreign judgment is the foreign judgment itself, and the cause
of action arising from the adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the
instant complaint for enforcement of a foreign judgment,
even if capable of pecuniary estimation, would fall under the
jurisdiction of the Regional Trial Courts, thus negating the fears
of the petitioners. Indeed, an examination of the provision
indicates that it can be relied upon as jurisdictional basis with
respect to actions for enforcement of foreign judgments,
provided that no other court or office is vested jurisdiction over
such complaint:
Sec. 19. Jurisdiction in civil cases. — Regional Trial
Courts shall exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of
any court, tribunal, person or body exercising
jurisdiction or any court, tribunal, person or body
exercising judicial or quasi-judicial functions.
Thus, we are comfortable in asserting the obvious, that the
complaint to enforce the US District Court judgment is one
capable of pecuniary estimation. But at the same time, it is
also an action based on judgment against an estate, thus
placing it beyond the ambit of Section 7(a) of Rule 141. What
provision then governs the proper computation of the filing
fees over the instant complaint? For this case and other
similarly situated instances, we find that it is covered by
Section 7(b)(3), involving as it does, "other actions not
involving property."
Notably, the amount paid as docket fees by the petitioners on
the premise that it was an action incapable of pecuniary
estimation corresponds to the same amount required for
"other actions not involving property." The petitioners thus paid
the correct amount of filing fees, and it was a grave abuse of
discretion for respondent judge to have applied instead a
clearly inapplicable rule and dismissed the complaint.
There is another consideration of supreme relevance in this
case, one which should disabuse the notion that the doctrine
affirmed in this decision is grounded solely on the letter of the
procedural rule. We earlier adverted to the the internationally
recognized policy of preclusion,46 as well as the principles of
comity, utility and convenience of nations 47 as the basis for the
evolution of the rule calling for the recognition and
enforcement of foreign judgments. The US Supreme Court
in Hilton v. Guyot48 relied heavily on the concept of comity, as
especially derived from the landmark treatise of Justice Story
in his Commentaries on the Conflict of Laws of 1834.49 Yet the
notion of "comity" has since been criticized as one "of dim
contours"50 or suffering from a number of fallacies.51 Other
conceptual bases for the recognition of foreign judgments
have evolved such as the vested rights theory or the modern
doctrine of obligation.52
There have been attempts to codify through treaties or
multilateral agreements the standards for the recognition and
enforcement of foreign judgments, but these have not borne
fruition. The members of the European Common Market
accede to the Judgments Convention, signed in 1978, which
eliminates as to participating countries all of such obstacles to
recognition such as reciprocity and révision au fond.53 The
most ambitious of these attempts is the Convention on the
Recognition and Enforcement of Foreign Judgments in Civil
and Commercial Matters, prepared in 1966 by the Hague
Conference of International Law.54 While it has not received
the ratifications needed to have it take effect,55 it is
recognized as representing current scholarly thought on the
topic.56 Neither the Philippines nor the United States are
signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory
behind the recognition and enforcement of foreign judgments
or a universal treaty rendering it obligatory force, there is
consensus that the viability of such recognition and
enforcement is essential. Steiner and Vagts note:
. . . The notion of unconnected bodies of national
law on private international law, each following a
quite separate path, is not one conducive to the
growth of a transnational community encouraging
travel and commerce among its members. There is a
contemporary resurgence of writing stressing the
identity or similarity of the values that systems of public
and private international law seek to further – a
community interest in common, or at least
reasonable, rules on these matters in national legal
systems. And such generic principles as reciprocity
play an important role in both fields.57
Salonga, whose treatise on private international law is of
worldwide renown, points out:
Whatever be the theory as to the basis for recognizing
foreign judgments, there can be little dispute that the
end is to protect the reasonable expectations and
demands of the parties. Where the parties have
submitted a matter for adjudication in the court of
one state, and proceedings there are not tainted with
irregularity, they may fairly be expected to submit,
within the state or elsewhere, to the enforcement of
the judgment issued by the court.58
There is also consensus as to the requisites for recognition of a
foreign judgment and the defenses against the enforcement
thereof. As earlier discussed, the exceptions enumerated in
Section 48, Rule 39 have remain unchanged since the time
they were adapted in this jurisdiction from long standing
American rules. The requisites and exceptions as delineated
under Section 48 are but a restatement of generally accepted
principles of international law. Section 98 of The Restatement,
Second, Conflict of Laws, states that "a valid judgment
rendered in a foreign nation after a fair trial in a contested
proceeding will be recognized in the United States," and on its
face, the term "valid" brings into play requirements such
notions as valid jurisdiction over the subject matter and
parties.59Similarly, the notion that fraud or collusion may
preclude the enforcement of a foreign judgment finds
affirmation with foreign jurisprudence and commentators,60 as
well as the doctrine that the foreign judgment must not
constitute "a clear mistake of law or fact."61 And finally, it has
been recognized that "public policy" as a defense to the
recognition of judgments serves as an umbrella for a variety of
concerns in international practice which may lead to a denial
of recognition.62
The viability of the public policy defense against the
enforcement of a foreign judgment has been recognized in
this jurisdiction.63 This defense allows for the application of local
standards in reviewing the foreign judgment, especially when
such judgment creates only a presumptive right, as it does in
cases wherein the judgment is against a person.64 The defense
is also recognized within the international sphere, as many civil
law nations adhere to a broad public policy exception which
may result in a denial of recognition when the foreign court, in
the light of the choice-of-law rules of the recognizing court,
applied the wrong law to the case.65 The public policy defense
can safeguard against possible abuses to the easy resort to
offshore litigation if it can be demonstrated that the original
claim is noxious to our constitutional values.
There is no obligatory rule derived from treaties or conventions
that requires the Philippines to recognize foreign judgments, or
allow a procedure for the enforcement thereof. However,
generally accepted principles of international law, by virtue of
the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty
obligations.66 The classical formulation in international law sees
those customary rules accepted as binding result from the
combination two elements: the established, widespread, and
consistent practice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief
that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.67
While the definite conceptual parameters of the recognition
and enforcement of foreign judgments have not been
authoritatively established, the Court can assert with certainty
that such an undertaking is among those generally accepted
principles of international law.68 As earlier demonstrated, there
is a widespread practice among states accepting in principle
the need for such recognition and enforcement, albeit subject
to limitations of varying degrees. The fact that there is no
binding universal treaty governing the practice is not
indicative of a widespread rejection of the principle, but only
a disagreement as to the imposable specific rules governing
the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the
procedure for recognition and enforcement is embodied in
the rules of law, whether statutory or jurisprudential, adopted
in various foreign jurisdictions. In the Philippines, this is
evidenced primarily by Section 48, Rule 39 of the Rules of
Court which has existed in its current form since the early
1900s. Certainly, the Philippine legal system has long ago
accepted into its jurisprudence and procedural rules the
viability of an action for enforcement of foreign judgment, as
well as the requisites for such valid enforcement, as derived
from internationally accepted doctrines. Again, there may be
distinctions as to the rules adopted by each particular
state,69 but they all prescind from the premise that there is a
rule of law obliging states to allow for, however generally, the
recognition and enforcement of a foreign judgment. The bare
principle, to our mind, has attained the status of opinio juris in
international practice.
This is a significant proposition, as it acknowledges that the
procedure and requisites outlined in Section 48, Rule 39 derive
their efficacy not merely from the procedural rule, but by
virtue of the incorporation clause of the Constitution. Rules of
procedure are promulgated by the Supreme Court,70 and
could very well be abrogated or revised by the high court
itself. Yet the Supreme Court is obliged, as are all State
components, to obey the laws of the land, including generally
accepted principles of international law which form part
thereof, such as those ensuring the qualified recognition and
enforcement of foreign judgments.71
Thus, relative to the enforcement of foreign judgments in the
Philippines, it emerges that there is a general right recognized
within our body of laws, and affirmed by the Constitution, to
seek recognition and enforcement of foreign judgments, as
well as a right to defend against such enforcement on the
grounds of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
The preclusion of an action for enforcement of a foreign
judgment in this country merely due to an exhorbitant
assessment of docket fees is alien to generally accepted
practices and principles in international law. Indeed, there are
grave concerns in conditioning the amount of the filing fee on
the pecuniary award or the value of the property subject of
the foreign decision. Such pecuniary award will almost
certainly be in foreign denomination, computed in
accordance with the applicable laws and standards of the
forum.72 The vagaries of inflation, as well as the relative low-
income capacity of the Filipino, to date may very well
translate into an award virtually unenforceable in this country,
despite its integral validity, if the docket fees for the
enforcement thereof were predicated on the amount of the
award sought to be enforced. The theory adopted by
respondent judge and the Marcos Estate may even lead to
absurdities, such as if applied to an award involving real
property situated in places such as the United States or
Scandinavia where real property values are inexorably high.
We cannot very well require that the filing fee be computed
based on the value of the foreign property as determined by
the standards of the country where it is located.

As crafted, Rule 141 of the Rules of Civil Procedure avoids

unreasonableness, as it recognizes that the subject matter of
an action for enforcement of a foreign judgment is the foreign
judgment itself, and not the right-duty correlatives that
resulted in the foreign judgment. In this particular
circumstance, given that the complaint is lodged against an
estate and is based on the US District Court's Final Judgment,
this foreign judgment may, for purposes of classification under
the governing procedural rule, be deemed as subsumed
under Section 7(b)(3) of Rule 141, i.e., within the class of "all
other actions not involving property." Thus, only the blanket
filing fee of minimal amount is required.

Finally, petitioners also invoke Section 11, Article III of the

Constitution, which states that "[F]ree access to the courts and
quasi-judicial bodies and adequate legal assistance shall not
be denied to any person by reason of poverty." Since the
provision is among the guarantees ensured by the Bill of Rights,
it certainly gives rise to a demandable right. However, now is
not the occasion to elaborate on the parameters of this
constitutional right. Given our preceding discussion, it is not
necessary to utilize this provision in order to grant the relief
sought by the petitioners. It is axiomatic that the
constitutionality of an act will not be resolved by the courts if
the controversy can be settled on other grounds73 or unless the
resolution thereof is indispensable for the determination of the
case.74

One more word. It bears noting that Section 48, Rule 39

acknowledges that the Final Judgment is not conclusive yet,
but presumptive evidence of a right of the petitioners against
the Marcos Estate. Moreover, the Marcos Estate is not
precluded to present evidence, if any, of want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake
of law or fact. This ruling, decisive as it is on the question of
filing fees and no other, does not render verdict on the
enforceability of the Final Judgment before the courts under
the jurisdiction of the Philippines, or for that matter any other
issue which may legitimately be presented before the trial
court. Such issues are to be litigated before the trial court, but
within the confines of the matters for proof as laid down in
Section 48, Rule 39. On the other hand, the speedy resolution
of this claim by the trial court is encouraged, and
contumacious delay of the decision on the merits will not be
brooked by this Court.

WHEREFORE, the petition is GRANTED. The assailed orders are

NULLIFIED and SET ASIDE, and a new order REINSTATING Civil
Case No. 97-1052 is hereby issued. No costs.

SO ORDERED.
 MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64
in relation to Rule 65 of the Rules of Court with extremely
urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of
preliminary injunction assailing the following: (1) 1 December
2015 Resolution of the Commission on Elections (COMELEC)
Second Division; (2) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December
2015 Resolution of the COMELEC First Division; and ( 4) 23
December 2015 Resolution of the COMELEC En Banc, in SPA
No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC)
for having been issued without jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was
found abandoned as a newborn infant in the Parish Church of
Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3
September 1968. Parental care and custody over petitioner
was passed on by Edgardo to his relatives, Emiliano Militar
(Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with
the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her
Foundling Certificate and Certificate of Live Birth, the
petitioner was given the name "Mary Grace Natividad
Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses
Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa
Sonora Poe (a.k.a. Susan Roces) filed a petition for her
adoption with the Municipal Trial Court (MTC) of San Juan City.
On 13 May 1974, the trial court granted their petition and
ordered that petitioner's name be changed from "Mary Grace
Natividad Contreras Militar" to "Mary Grace Natividad Sonora
Poe." Although necessary notations were made by OCR-Iloilo
on petitioner's foundling certificate reflecting the court
decreed adoption,2 the petitioner's adoptive mother
discovered only sometime in the second half of 2005 that the
lawyer who handled petitioner's adoption failed to secure
from the OCR-Iloilo a new Certificate of Live Birth indicating
petitioner's new name and the name of her adoptive
parents. 3 Without delay, petitioner's mother executed an
affidavit attesting to the lawyer's omission which she submitted
to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new
Certificate of Live Birth in the name of Mary Grace Natividad
Sonora Poe.4
Having reached the age of eighteen (18) years in 1986,
petitioner registered as a voter with the local COMELEC Office
in San Juan City. On 13 December 1986, she received her
COMELEC Voter's Identification Card for Precinct No. 196 in
Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued
Philippine Passport No. F9272876 by the Department of Foreign
Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998,
she renewed her Philippine passport and respectively secured
Philippine Passport Nos. L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in
Development Studies at the University of the Philippines 8 but
she opted to continue her studies abroad and left for the
United States of America (U.S.) in 1988. Petitioner graduated in
1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political
Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V.
Llamanzares (Llamanzares), a citizen of both the Philippines
and the U.S., at Sanctuario de San Jose Parish in San Juan
City. 10 Desirous of being with her husband who was then
based in the U.S., the couple flew back to the U.S. two days
after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child
Brian Daniel (Brian) on 16 April 1992.12 Her two daughters
Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were
both born in the Philippines on 10 July 1998 and 5 June 2004,
respectively. 13
On 18 October 2001, petitioner became a naturalized
American citizen. 14 She obtained U.S. Passport No. 017037793
on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines
together with Hanna to support her father's candidacy for
President in the May 2004 elections. It was during this time that
she gave birth to her youngest daughter Anika. She returned
to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004,
petitioner rushed back to the Philippines upon learning of her
father's deteriorating medical condition. 17 Her father slipped
into a coma and eventually expired. The petitioner stayed in
the country until 3 February 2005 to take care of her father's
funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father
was a severe blow to her entire family. In her earnest desire to
be with her grieving mother, the petitioner and her husband
decided to move and reside permanently in the Philippines
sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their
children's schools that they will be transferring to Philippine
schools for the next semester;20coordination with property
movers for the relocation of their household goods, furniture
and cars from the U.S. to the Philippines;21 and inquiry with
Philippine authorities as to the proper procedure to be
followed in bringing their pet dog into the country.22 As early
as 2004, the petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May
200524 and without delay, secured a Tax Identification Number
from the Bureau of Internal Revenue. Her three (3) children
immediately followed25 while her husband was forced to stay
in the U.S. to complete pending projects as well as to arrange
the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's
place until she and her husband purchased a condominium
unit with a parking slot at One Wilson Place Condominium in
San Juan City in the second half of 2005.27 The corresponding
Condominium Certificates of Title covering the unit and
parking slot were issued by the Register of Deeds of San Juan
City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began
attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the
U.S. to supervise the disposal of some of the family's remaining
household belongings.29 She travelled back to the Philippines
on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the
U.S. Postal Service of the family's change and abandonment
of their address in the U.S.31 The family home was eventually
sold on 27 April 2006.32 Petitioner's husband resigned from his
job in the U.S. in April 2006, arrived in the country on 4 May
2006 and started working for a major Philippine company in
July 2006.33
In early 2006, petitioner and her husband acquired a 509-
square meter lot in Corinthian Hills, Quezon City where they
built their family home34 and to this day, is where the couple
and their children have been residing.35 A Transfer Certificate
of Title covering said property was issued in the couple's name
by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the
Republic of the Philippines pursuant to Republic Act (R.A.) No.
9225 or the Citizenship Retention and Re-acquisition Act of
2003.36 Under the same Act, she filed with the Bureau of
Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on
behalf of her three minor children on 10 July 2006.37 As can be
gathered from its 18 July 2006 Order, the BI acted favorably on
petitioner's petitions and declared that she is deemed to have
reacquired her Philippine citizenship while her children are
considered as citizens of the Philippines.38 Consequently, the BI
issued Identification Certificates (ICs) in petitioner's name and
in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa
Lucia, San Juan City on 31 August 2006.40 She also secured
from the DFA a new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18 March 2014 and
she was issued Philippine Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed
petitioner as Chairperson of the Movie and Television Review
and Classification Board (MTRCB).43 Before assuming her post,
petitioner executed an "Affidavit of Renunciation of
Allegiance to the United States of America and Renunciation
of American Citizenship" before a notary public in Pasig City
on 20 October 2010,44 in satisfaction of the legal requisites
stated in Section 5 of R.A. No. 9225.45 The following day, 21
October 2010 petitioner submitted the said affidavit to the
BI46 and took her oath of office as Chairperson of the
MTRCB.47 From then on, petitioner stopped using her American
passport.48
On 12 July 2011, the petitioner executed before the Vice
Consul of the U.S. Embassy in Manila an "Oath/Affirmation of
Renunciation of Nationality of the United States." 49 On that
day, she accomplished a sworn questionnaire before the U.S.
Vice Consul wherein she stated that she had taken her oath
as MTRCB Chairperson on 21 October 2010 with the intent,
among others, of relinquishing her American citizenship. 50 In
the same questionnaire, the petitioner stated that she had
resided outside of the U.S., specifically in the Philippines, from 3
September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner
a "Certificate of Loss of Nationality of the United States"
effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her
Certificate of Candidacy (COC) for Senator for the 2013
Elections wherein she answered "6 years and 6 months" to the
question "Period of residence in the Philippines before May 13,
2013."53 Petitioner obtained the highest number of votes and
was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine
Diplomatic Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the
Presidency for the May 2016 Elections. 56 In her COC, the
petitioner declared that she is a natural-born citizen and that
her residence in the Philippines up to the day before 9 May
2016 would be ten (10) years and eleven (11) months counted
from 24 May 2005.57 The petitioner attached to her COC an
"Affidavit Affirming Renunciation of U.S.A. Citizenship"
subscribed and sworn to before a notary public in Quezon City
on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming
elections triggered the filing of several COMELEC cases
against her which were the subject of these consolidated
cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella
Elamparo (Elamparo) filed a petition to deny due course or
cancel said COC which was docketed as SPA No. 15-001 (DC)
and raffled to the COMELEC Second Division.59She is
convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner
committed material misrepresentation when she stated in her
COC that she is a natural-born Filipino citizen and that she is a
resident of the Philippines for at least ten (10) years and eleven
(11) months up to the day before the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner
cannot be considered as a natural-born Filipino on account of
the fact that she was a foundling.62 Elamparo claimed that
international law does not confer natural-born status and
Filipino citizenship on foundlings.63 Following this line of
reasoning, petitioner is not qualified to apply for reacquisition
of Filipino citizenship under R.A. No. 9225 for she is not a
natural-born Filipino citizen to begin with.64Even
assuming arguendo that petitioner was a natural-born Filipino,
she is deemed to have lost that status when she became a
naturalized American citizen.65 According to Elamparo,
natural-born citizenship must be continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out
that petitioner was bound by the sworn declaration she made
in her 2012 COC for Senator wherein she indicated that she
had resided in the country for only six ( 6) years and six ( 6)
months as of May 2013 Elections. Elamparo likewise insisted
that assuming arguendo that petitioner is qualified to regain
her natural-born status under R.A. No. 9225, she still fell short of
the ten-year residency requirement of the Constitution as her
residence could only be counted at the earliest from July
2006, when she reacquired Philippine citizenship under the
said Act. Also on the assumption that petitioner is qualified to
reacquire lost Philippine Citizenship, Elamparo is of the belief
that she failed to reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered
that:
(1) the COMELEC did not have jurisdiction over
Elamparo's petition as it was actually a petition
for quo warranto which could only be filed if Grace
Poe wins in the Presidential elections, and that the
Department of Justice (DOJ) has primary jurisdiction to
revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action
because it did not contain allegations which, if
hypothetically admitted, would make false the
statement in her COC that she is a natural-born
Filipino citizen nor was there any allegation that there
was a willful or deliberate intent to misrepresent on her
part;
(3) she did not make any material misrepresentation in
the COC regarding her citizenship and residency
qualifications for:
a. the 1934 Constitutional Convention
deliberations show that foundlings were
considered citizens;
b. foundlings are presumed under
international law to have been born of
citizens of the place where they are found;
c. she reacquired her natural-born Philippine
citizenship under the provisions of R.A. No.
9225;
 d. she executed a sworn renunciation of her
American citizenship prior to the filing of her
COC for President in the May 9, 2016 Elections
and that the same is in full force and effect
and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving
that she did not possess natural-born status;
f. residence is a matter of evidence and that
she reestablished her domicile in the
Philippines as early as May 24, 2005;
g. she could reestablish residence even
before she reacquired natural-born citizenship
under R.A. No. 9225;
h. statement regarding the period of
residence in her 2012 COC for Senator was an
honest mistake, not binding and should give
way to evidence on her true date of
reacquisition of domicile;
i. Elamparo's petition is merely an action to
usurp the sovereign right of the Filipino people
to decide a purely political question, that is,
should she serve as the country's next
leader.68
After the parties submitted their respective Memoranda, the
petition was deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division
promulgated a Resolution finding that petitioner's COC, filed
for the purpose of running for the President of the Republic of
the Philippines in the 9 May 2016 National and Local Elections,
contained material representations which are false.
The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the
instant Petition to Deny Due Course to or Cancel Certificate of
Candidacy is hereby GRANTED. Accordingly, the Certificate of
Candidacy for President of the Republic of the Philippines in
the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe Llamanzares is
hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution
was filed by petitioner which the COMELEC En Banc resolved
in its 23 December 2015 Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by
Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras)
and Amado D. Valdez (Valdez) against petitioner before the
COMELEC which were consolidated and raffled to its First
Division.
In his petition to disqualify petitioner under Rule 25 of the
COMELEC Rules of Procedure,71 docketed as SPA No. 15-002
(DC), Tatad alleged that petitioner lacks the requisite
residency and citizenship to qualify her for the Presidency.72
Tatad theorized that since the Philippines adheres to the
principle of jus sanguinis, persons of unknown parentage,
particularly foundlings, cannot be considered natural-born
Filipino citizens since blood relationship is determinative of
natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred
that the fact that foundlings were not expressly included in the
categories of citizens in the 193 5 Constitution is indicative of
the framers' intent to exclude them.74 Therefore, the burden
lies on petitioner to prove that she is a natural-born citizen.75
Neither can petitioner seek refuge under international
conventions or treaties to support her claim that foundlings
have a nationality.76 According to Tatad, international
conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty
obligations assumed by the Philippines.77 He also stressed that
there is no standard state practice that automatically confers
natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner
cannot avail of the option to reacquire Philippine citizenship
under R.A. No. 9225 because it only applies to former natural-
born citizens and petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded
that she did not comply with the ten (10) year residency
requirement.80 Tatad opined that petitioner acquired her
domicile in Quezon City only from the time she renounced her
American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of
intention to abandon her U.S. domicile as evinced by the fact
that her husband stayed thereat and her frequent trips to the
U.S.82
In support of his petition to deny due course or cancel the
COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez
alleged that her repatriation under R.A. No. 9225 did not
bestow upon her the status of a natural-born citizen.83 He
advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine
citizenship and will not revert to their original status as natural-
born citizens.84
He further argued that petitioner's own admission in her COC
for Senator that she had only been a resident of the Philippines
for at least six (6) years and six (6) months prior to the 13 May
2013 Elections operates against her. Valdez rejected
petitioner's claim that she could have validly reestablished her
domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner
did not meet the ten (10) year residency requirement for
President.
Unlike the previous COMELEC cases filed against petitioner,
Contreras' petition,85 docketed as SPA No. 15-007 (DC), limited
the attack to the residency issue. He claimed that petitioner's
2015 COC for President should be cancelled on the ground
that she did not possess the ten-year period of residency
required for said candidacy and that she made false entry in
her COC when she stated that she is a legal resident of the
Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for
computing petitioner's residency in the Philippines should be
from 18 July 2006, the date when her petition to reacquire
Philippine citizenship was approved by the BI.87 He asserted
that petitioner's physical presence in the country before 18
July 2006 could not be valid evidence of reacquisition of her
Philippine domicile since she was then living here as an
American citizen and as such, she was governed by the
Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to
state a cause of action. His petition did not invoke grounds
proper for a disqualification case as enumerated under
Sections 12 and 68 of the Omnibus Election Code.89 Instead,
Tatad completely relied on the alleged lack of residency and
natural-born status of petitioner which are not among the
recognized grounds for the disqualification of a candidate to
an elective office.90
Second, the petitions filed against her are basically petitions
for quo warranto as they focus on establishing her ineligibility
for the Presidency.91 A petition for quo warranto falls within the
exclusive jurisdiction of the Presidential Electoral Tribunal (PET)
and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino
citizen is on the respondents.93 Otherwise stated, she has a
presumption in her favor that she is a natural-born citizen of
this country.
Fourth, customary international law dictates that foundlings
are entitled to a nationality and are presumed to be citizens of
the country where they are found.94 Consequently, the
petitioner is considered as a natural-born citizen of the
Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every
right to be repatriated under R.A. No. 9225 or the right to
reacquire her natural-born status.96 Moreover, the official acts
of the Philippine Government enjoy the presumption of
regularity, to wit: the issuance of the 18 July 2006 Order of the
BI declaring her as natural-born citizen, her appointment as
MTRCB Chair and the issuance of the decree of adoption of
San Juan RTC.97 She believed that all these acts reinforced her
position that she is a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005,
she started reestablishing her domicile of choice in the
Philippines as demonstrated by her children's resettlement and
schooling in the country, purchase of a condominium unit in
San Juan City and the construction of their family home in
Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her
domicile of choice in the Philippines even before she
renounced her American citizenship as long as the three
determinants for a change of domicile are complied
with.100She reasoned out that there was no requirement that
renunciation of foreign citizenship is a prerequisite for the
acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the
residency portion of her COC for Senator was a mistake made
in good faith.102
In a Resolution103 promulgated on 11 December 2015, the
COMELEC First Division ruled that petitioner is not a natural-
born citizen, that she failed to complete the ten (10) year
residency requirement, and that she committed material
misrepresentation in her COC when she declared therein that
she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the
elections on 9 May 2016. The COMELEC First Division
concluded that she is not qualified for the elective position of
President of the Republic of the Philippines. The dispositive
portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED,
as it hereby RESOLVES, to GRANT the Petitions and cancel the
Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal
of the COMELEC First Division's Resolution. On 23 December
2015, the COMELEC En Banc issued a Resolution denying
petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner
instituted the present petitions for certiorari with urgent prayer
for the issuance of an ex parte temporary
restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary
restraining orders were issued by the Court enjoining the
COMELEC and its representatives from implementing the
assailed COMELEC Resolutions until further orders from the
Court. The Court also ordered the consolidation of the two
petitions filed by petitioner in its Resolution of 12 January 2016.
Thereafter, oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S.
Poe-Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered
through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered
through its First Division, in the consolidated cases SPA
No. 15-002 (DC) entitled Francisco S. Tatad, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P.
Contreras, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; and SPA No. 15-
139 (DC) entitled Amado D. Valdez, petitioner, v. Mary
Grace Natividad Sonora Poe-Llamanzares,
respondent.
3. Resolution dated 23 December 2015 of the
Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the
Commission En Banc, upholding the 11 December
2015 Resolution of the First Division.
The procedure and the conclusions from which the
questioned Resolutions emanated are tainted with grave
abuse of discretion amounting to lack of jurisdiction. The
petitioner is a QUALIFIED CANDIDATE for President in the 9 May
2016 National Elections.
The issue before the COMELEC is whether or not the COC of
petitioner should be denied due course or cancelled "on the
exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should
hedge in the discretion of the COMELEC and restrain it from
going into the issue of the qualifications of the candidate for
the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot
itself, in the same cancellation case, decide the qualification
or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic,
particularly its provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the
following powers and functions:
(1) Enforce and administer all laws and
regulations relative to the conduct of an
election, plebiscite, initiative, referendum,
and recall.
(2) Exercise exclusive original jurisdiction over
all contests relating to the elections, returns,
and qualifications of all elective regional,
provincial, and city officials, and appellate
jurisdiction over all contests involving elective
municipal officials decided by trial courts of
general jurisdiction, or involving elective
barangay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the
Commission on election contests involving
elective municipal and barangay offices shall
be final, executory, and not appealable.
(3) Decide, except those involving the right to
vote, all questions affecting elections,
including determination of the number and
location of polling places, appointment of
election officials and inspectors, and
registration of voters.
(4) Deputize, with the concurrence of the
President, law enforcement agencies and
instrumentalities of the Government, including
the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.
(5) Register, after sufficient publication,
political parties, organizations, or coalitions
 which, in addition to other requirements, must
present their platform or program of
government; and accredit citizens' arms of
the Commission on Elections. Religious
denominations and sects shall not be
registered. Those which seek to achieve their
goals through violence or unlawful means, or
refuse to uphold and adhere to this
Constitution, or which are supported by any
foreign government shall likewise be refused
registration.
Financial contributions from foreign
governments and their agencies to political
parties, organizations, coalitions, or
candidates related to elections constitute
interference in national affairs, and, when
accepted, shall be an additional ground for
the cancellation of their registration with the
Commission, in addition to other penalties
that may be prescribed by law.
(6) File, upon a verified complaint, or on its
own initiative, petitions in court for inclusion or
exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of
election laws, including acts or omissions
constituting election frauds, offenses, and
malpractices.
(7) Recommend to the Congress effective
measures to minimize election spending,
including limitation of places where
propaganda materials shall be posted, and
to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance
candidacies.
(8) Recommend to the President the removal
of any officer or employee it has deputized, or
the imposition of any other disciplinary action,
for violation or disregard of, or disobedience
to its directive, order, or decision.
(9) Submit to the President and the Congress
a comprehensive report on the conduct of
each election, plebiscite, initiative,
referendum, or recall.
Not any one of the enumerated powers approximate the
exactitude of the provisions of Article VI, Section 17 of the
same basic law stating that:
The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election,
returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed
of nine Members, three of whom shall be Justices of
the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case
may be, who shall be chosen on the basis of
proportional representation from the political parties
and the parties or organizations registered under the
party-list system represented therein. The senior Justice
in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides
that:
The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns,
and qualifications of the President or Vice-President,
and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the
qualifications of the President, the Vice-President, Senators
and the Members of the House of Representatives was made
clear by the Constitution. There is no such provision for
candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-
Marcos v. Commission on Elections,104 which was affirmatively
cited in the En Banc decision in Fermin v. COMELEC105 is our
guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule
25 § 1, the following:
Grounds for disqualification. - Any candidate
who does not possess all the qualifications of
a candidate as provided for by the
Constitution or by existing law or who commits
any act declared by law to be grounds for
disqualification may be disqualified from
continuing as a candidate.
The lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the
exercise of its rule-making power under Art. IX, A, §6 of the
Constitution, cannot do it. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases
involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of
voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for
"disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated,
are based on grounds specified in § 12 and §68 of the
Omnibus Election Code and in §40 of the Local Government
Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a
candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the
statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the
incumbent from office.
Consequently, that an individual possesses the qualifications
for a public office does not imply that he is not disqualified
from becoming a candidate or continuing as a candidate for
a public office and vice versa. We have this sort of dichotomy
in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in §2 of the Law does not imply that
he does not suffer from any of [the] disqualifications provided
in §4.
Before we get derailed by the distinction as to grounds and
the consequences of the respective proceedings, the
importance of the opinion is in its statement that "the lack of
provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule". Justice Mendoza lectured
in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an
authorized proceeding for determining before election the
qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed
elected, there is no necessity for determining his eligibility for
the office. In contrast, whether an individual should be
disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his
disqualification is being sought. That is why it is provided that if
the grounds for disqualification are established, a candidate
will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or
his proclamation will be set aside.
Second is the fact that the determination of a candidates'
eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the
beginning of the term of the office. This is amply demonstrated
in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of
May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why
the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is
satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill,
leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only
in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A.
No. 7166, § 15) The purpose is to preserve the prerogatives of
the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the
President and Vice President, as the case may be.106
To be sure, the authoritativeness of
the Romualdez pronouncements as reiterated in Fermin, led to
the amendment through COMELEC Resolution No. 9523, on 25
September 2012 of its Rule 25. This, the 15 February1993 version
of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not
possess all the qualifications of a candidate as provided for by
the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which
he is a party, is declared by final decision of a competent
court, guilty of, or found by the Commission to be suffering
from any disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a
Petition to Deny to or Cancel a Certificate of Candidacy or
Petition to Declare a Candidate as a Nuisance Candidate, or
a combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of
the reality of absence of an authorized proceeding for
determining before election the qualifications of candidate.
Such that, as presently required, to disqualify a candidate
there must be a declaration by a final judgment of a
competent court that the candidate sought to be disqualified
"is guilty of or found by the Commission to be suffering from
any disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule
25 and Rule 23 are flipsides of one to the other. Both do not
allow, are not authorizations, are not vestment of jurisdiction,
for the COMELEC to determine the qualification of a
candidate. The facts of qualification must beforehand be
established in a prior proceeding before an authority properly
vested with jurisdiction. The prior determination of qualification
may be by statute, by executive order or by a judgment of a
competent court or tribunal.
If a candidate cannot be disqualified without a prior finding
that he or she is suffering from a disqualification "provided by
law or the Constitution," neither can the certificate of
candidacy be cancelled or denied due course on grounds of
false representations regarding his or her qualifications, without
a prior authoritative finding that he or she is not qualified, such
prior authority being the necessary measure by which the
falsity of the representation can be found. The only exception
that can be conceded are self-evident facts of unquestioned
or unquestionable veracity and judicial confessions. Such are,
anyway, bases equivalent to prior decisions against which the
falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a
proceeding under Rule 23 that deals with, as in this case,
alleged false representations regarding the candidate's
citizenship and residence, forced the COMELEC to rule
essentially that since foundlings108 are not mentioned in the
enumeration of citizens under the 1935 Constitution,109 they
then cannot be citizens. As the COMELEC stated in oral
arguments, when petitioner admitted that she is a foundling,
she said it all. This borders on bigotry. Oddly, in an effort at
tolerance, the COMELEC, after saying that it cannot rule that
herein petitioner possesses blood relationship with a Filipino
citizen when "it is certain that such relationship is
indemonstrable," proceeded to say that "she now has the
burden to present evidence to prove her natural filiation with
a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino
citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding
paternity is neither unknown nor unaccepted in Philippine Law.
The Family Code of the Philippines has a whole chapter on
Paternity and Filiation.110 That said, there is more than sufficient
evider1ce that petitioner has Filipino parents and is therefore a
natural-born Filipino. Parenthetically, the burden of proof was
on private respondents to show that petitioner is not a Filipino
citizen. The private respondents should have shown that both
of petitioner's parents were aliens. Her admission that she is a
foundling did not shift the burden to her because such status
did not exclude the possibility that her parents were Filipinos,
especially as in this case where there is a high probability, if
not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as
their identities are unknown, but whether such parents are
Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have
such a relation to the fact in issue as to induce belief in its
existence or no-existence. Evidence on collateral matters shall
not be allowed, except when it tends in any reasonable
degree to establish the probability of improbability of the fact
in issue.
The Solicitor General offered official statistics from the
Philippine Statistics Authority (PSA)111 that from 1965 to 1975,
the total number of foreigners born in the Philippines was
15,986 while the total number of Filipinos born in the country
was 10,558,278. The statistical probability that any child born in
the Philippines in that decade is natural-born Filipino
was 99.83%. For her part, petitioner presented census statistics
for Iloilo Province for 1960 and 1970, also from the PSA. In 1960,
there were 962,532 Filipinos and 4,734 foreigners in the
province; 99.62% of the population were Filipinos. In 1970, the
figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%.
Also presented were figures for the child producing ages (15-
49). In 1960, there were 230,528 female Filipinos as against 730
female foreigners or 99.68%. In the same year, there were
210,349 Filipino males and 886 male aliens, or 99.58%. In 1970,
there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as
against only 1,165 male aliens or 99.53%. COMELEC did not
dispute these figures. Notably, Commissioner Arthur Lim
admitted, during the oral arguments, that at the time
petitioner was found in 1968, the majority of the population in
Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's
parents are the fact that she was abandoned as an infant in a
Roman Catholic Church in Iloilo City.1âwphi1 She also has
typical Filipino features: height, flat nasal bridge, straight black
hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened
according to the ordinary course of nature and the ordinary
habits of life.113 All of the foregoing evidence, that a person
with typical Filipino features is abandoned in Catholic Church
in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a
99% chance that a child born in the province would be a
Filipino, would indicate more than ample probability if not
statistical certainty, that petitioner's parents are Filipinos. That
probability and the evidence on which it is based are
admissible under Rule 128, Section 4 of the Revised Rules on
Evidence.
To assume otherwise is to accept the absurd, if not the virtually
impossible, as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do
not come to the Philippines so they can get pregnant and
leave their newborn babies behind. We do not face a
situation where the probability is such that every foundling
would have a 50% chance of being a Filipino and a 50%
chance of being a foreigner. We need to frame our questions
properly. What are the chances that the parents of anyone
born in the Philippines would be foreigners? Almost zero. What
are the chances that the parents of anyone born in the
Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to
2014, on a yearly average, there were 1,766,046 children born
in the Philippines to Filipino parents, as opposed to 1,301
children in the Philippines of foreign parents. Thus, for that
sample period, the ratio of non-Filipino children to natural born
Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a
natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the
Philippines is 15,986 while the total number of Filipinos born in
the Philippines is 15,558,278. For this period, the ratio of non-
Filipino children is 1:661. This means that the statistical
probability that any child born in the Philippines on that
decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch
the numbers for us, but I am confident that the statistical
probability that a child born in the Philippines would be a
natural born Filipino will not be affected by whether or not the
parents are known. If at all, the likelihood that a foundling
would have a Filipino parent might even be higher than 99.9%.
Filipinos abandon their children out of poverty or perhaps,
shame. We do not imagine foreigners abandoning their
children here in the Philippines thinking those infants would
have better economic opportunities or believing that this
country is a tropical paradise suitable for raising abandoned
children. I certainly doubt whether a foreign couple has ever
considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render
them stateless just because there may be a theoretical
chance that one among the thousands of these foundlings
might be the child of not just one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't
make any sense. Given the statistical certainty - 99.9% - that
any child born in the Philippines would be a natural born
citizen, a decision denying foundlings such status is effectively
a denial of their birthright. There is no reason why this
Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of
human beings. Your Honor, constitutional interpretation and
the use of common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born
citizens. While the 1935 Constitution's enumeration is silent as to
foundlings, there is no restrictive language which would
definitely exclude foundlings either. Because of silence and
ambiguity in the enumeration with respect to foundlings, there
is a need to examine the intent of the framers. In Nitafan v.
Commissioner of Internal Revenue, 114 this Court held that:
The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional
construction that the intent of the framers of the
organic law and of the people adopting it should be
given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation
offered by the framers.115
As pointed out by petitioner as well as the Solicitor General,
the deliberations of the 1934 Constitutional Convention show
that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection
2, the following is inserted: "The natural children of a foreign
father and a Filipino mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent
of the amendment. The gentleman refers to natural children or
to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes
natural children of unknown parentage, natural or illegitimate
children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents."
Current codes consider them Filipino, that is, I refer to the
Spanish Code wherein all children of unknown parentage
born in Spanish territory are considered Spaniards, because
the presumption is that a child of unknown parentage is the
son of a Spaniard. This may be applied in the Philippines in that
a child of unknown parentage born in the Philippines is
deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that
are [required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no
[more] need for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother
recognized by one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines
of unknown parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does
not recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment
would exclude the children of a Filipina with a foreigner who
does not recognize the child. Their parentage is not unknown
and I think those of overseas Filipino mother and father [whom
the latter] does not recognize, should also be considered as
Filipinos.
President:
The question in order is the amendment to the amendment
from the Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this
matter in the hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few
and far in between, that the constitution need [not] refer to
them. By international law the principle that children or people
born in a country of unknown parents are citizens in this nation
is recognized, and it is not necessary to include a provision on
the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not
because there was any objection to the notion that persons of
"unknown parentage" are not citizens but only because their
number was not enough to merit specific mention. Such was
the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols
presented an amendment to include as Filipino
citizens the illegitimate children with a foreign father of
a mother who was a citizen of the Philippines, and
also foundlings; but this amendment was defeated
primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a
provision in the Constitution to apply to them, should
be governed by statutory legislation. Moreover, it was
believed that the rules of international law were
already clear to the effect that illegitimate children
followed the citizenship of the mother, and
that foundlings followed the nationality of the place
where they were found, thereby making unnecessary
the inclusion in the Constitution of the proposed
amendment.
This explanation was likewise the position of the Solicitor
General during the 16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note
that what was declined was the proposal for a textual and
explicit recognition of foundlings as Filipinos. And so, the way
to explain the constitutional silence is by saying that it was the
view of Montinola and Roxas which prevailed that there is no
more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas'
views were legally correct. Framers of a constitution can
constitutionalize rules based on assumptions that are imperfect
or even wrong. They can even overturn existing rules. This is
basic. What matters here is that Montinola and Roxas were
able to convince their colleagues in the convention that there
is no more need to expressly declare foundlings as Filipinos
because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in
terms of linguistic efficiency and the avoidance of
redundancy. The policy is clear: it is to recognize foundlings, as
a class, as Filipinos under Art. IV, Section 1 (3) of the 1935
Constitution. This inclusive policy is carried over into the 1973
and 1987 Constitution. It is appropriate to invoke a famous
scholar as he was paraphrased by Chief Justice Fernando: the
constitution is not silently silent, it is silently vocal. 118
The Solicitor General makes the further point that the framers
"worked to create a just and humane society," that "they were
reasonable patriots and that it would be unfair to impute upon
them a discriminatory intent against foundlings." He exhorts
that, given the grave implications of the argument that
foundlings are not natural-born Filipinos, the Court must search
the records of the 1935, 1973 and 1987 Constitutions "for an
express intention to deny foundlings the status of Filipinos. The
burden is on those who wish to use the constitution to
discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this
across the board marginalization."
We find no such intent or language permitting discrimination
against foundlings. On the contrary, all three Constitutions
guarantee the basic right to equal protection of the laws. All
exhort the State to render social justice. Of special
consideration are several provisions in the present charter:
Article II, Section 11 which provides that the "State values the
dignity of every human person and guarantees full respect for
human rights," Article XIII, Section 1 which mandates Congress
to "give highest priority to the enactment of measures that
protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x
x" and Article XV, Section 3 which requires the State to defend
the "right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions prejudicial to
their development." Certainly, these provisions contradict an
intent to discriminate against foundlings on account of their
unfortunate status.
Domestic laws on adoption also support the principle that
foundlings are Filipinos. These laws do not provide that
adoption confers citizenship upon the adoptee. Rather, the
adoptee must be a Filipino in the first place to be adopted.
The most basic of such laws is Article 15 of the Civil Code
which provides that "[l]aws relating to family rights, duties,
status, conditions, legal capacity of persons are binding on
citizens of the Philippines even though living abroad."
Adoption deals with status, and a Philippine adoption court
will have jurisdiction only if the adoptee is a Filipino. In Ellis and
Ellis v. Republic,119 a child left by an unidentified mother was
sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a
proceedings in rem, which no court may entertain unless it has
jurisdiction, not only over the subject matter of the case and
over the parties, but also over the res, which is the personal
status of Baby Rose as well as that of petitioners herein. Our
Civil Code (Art. 15) adheres to the theory that jurisdiction over
the status of a natural person is determined by the latter's
nationality. Pursuant to this theory, we have jurisdiction over
the status of Baby Rose, she being a citizen of the Philippines,
but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act
Establishing the Rules to Govern the Inter-Country Adoption of
Filipino Children and For Other Purposes" (otherwise known as
the "Inter-Country Adoption Act of 1995"), R.A. No. 8552,
entitled "An Act Establishing the Rules and Policies on the
Adoption of Filipino Children and For Other Purposes"
(otherwise known as the Domestic Adoption Act of 1998) and
this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all
expressly refer to "Filipino children" and include foundlings as
among Filipino children who may be adopted.
It has been argued that the process to determine that the
child is a foundling leading to the issuance of a foundling
certificate under these laws and the issuance of said
certificate are acts to acquire or perfect Philippine citizenship
which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are
those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their
Philippine citizenship." In the first place, "having to perform an
act" means that the act must be personally done by the
citizen. In this instance, the determination of foundling status is
done not by the child but by the authorities.121 Secondly, the
object of the process is the determination of the whereabouts
of the parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election
of such citizenship by one born of an alien father and a Filipino
mother under the 1935 Constitution, which is an act to perfect
it.
In this instance, such issue is moot because there is no dispute
that petitioner is a foundling, as evidenced by a Foundling
Certificate issued in her favor.122 The Decree of Adoption
issued on 13 May 1974, which approved petitioner's adoption
by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly
refers to Emiliano and his wife, Rosario Militar, as her "foundling
parents," hence effectively affirming petitioner's status as a
foundling.123
Foundlings are likewise citizens under international law. Under
the 1987 Constitution, an international law can become part
of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an
international law be transformed into a domestic law through
a constitutional mechanism such as local legislation.124 On the
other hand, generally accepted principles of international
law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive
from treaty obligations. Generally accepted principles of
international law include international custom as evidence of
a general practice accepted as law, and general principles
of law recognized by civilized nations.125 International
customary rules are accepted as binding as a result from the
combination of two elements: the established, widespread,
and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive
necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring
it.126 "General principles of law recognized by civilized nations"
are principles "established by a process of reasoning" or
judicial logic, based on principles which are "basic to legal
systems generally,"127 such as "general principles of
equity, i.e., the general principles of fairness and justice," and
the "general principle against discrimination" which is
embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and
Occupation."128 These are the same core principles which
underlie the Philippine Constitution itself, as embodied in the
due process and equal protection clauses of the Bill of
Rights.129
Universal Declaration of Human Rights ("UDHR") has been
interpreted by this Court as part of the generally accepted
principles of international law and binding on the
State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality
nor denied the right to change his nationality.
The Philippines has also ratified the UN Convention on the
Rights of the Child (UNCRC). Article 7 of the UNCRC imposes
the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall
have the right from birth to a name, the right to acquire a
nationality and as far as possible, the right to know and be
cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights
in accordance with their national law and their obligations
under the relevant international instruments in this field, in
particular where the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International
Covenant on Civil and Political Rights (ICCPR). Article 24
thereof provide for the right of every child "to acquire a
nationality:"
Article 24
1. Every child shall have, without any discrimination as to race,
colour, sex, language, religion, national or social origin,
property or birth, the right, to such measures of protection as
are required by his status as a minor, on the part of his family,
society and the State.
2. Every child shall be registered immediately after birth and
shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to
obligate the Philippines to grant nationality from birth and
ensure that no child is stateless. This grant of nationality must
be at the time of birth, and it cannot be accomplished by the
application of our present naturalization laws, Commonwealth
Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by
the Philippines, are generally accepted principles of
international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of
Nationality Laws under which a foundling is presumed to have
the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have
the nationality of the country of birth. If the child's parentage is
established, its nationality shall be determined by the rules
applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have
been born on the territory of the State in which it was found.
(Underlining supplied)
The second is the principle that a foundling is presumed born
of citizens of the country where he is found, contained in
Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall,
in the absence of proof to the contrary, be considered to
have been born within the territory of parents possessing the
nationality of that State.
That the Philippines is not a party to the 1930 Hague
Convention nor to the 1961 Convention on the Reduction of
Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague
Convention, it is a signatory to the Universal Declaration on
Human Rights, Article 15(1) ofwhich131effectively affirms Article
14 of the 1930 Hague Convention. Article 2 of the 1961 "United
Nations Convention on the Reduction of Statelessness" merely
"gives effect" to Article 15(1) of the UDHR.132 In Razon v.
Tagitis, 133 this Court noted that the Philippines had not signed
or ratified the "International Convention for the Protection of
All Persons from Enforced Disappearance." Yet, we ruled that
the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted
principle of international law." Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted
principle of international law although the convention had
been ratified by only sixteen states and had not even come
into force and which needed the ratification of a minimum of
twenty states. Additionally, as petitioner points out, the Court
was content with the practice of international and regional
state organs, regional state practice in Latin America, and
State Practice in the United States.
Another case where the number of ratifying countries was not
determinative is Mijares v. Ranada, 134 where
only four countries had "either ratified or acceded to"135 the
1966 "Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters" when the
case was decided in 2005. The Court also pointed out that
that nine member countries of the European Common Market
had acceded to the Judgments Convention. The Court also
cited U.S. laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen countries were
considered and yet, there was pronouncement that
recognition of foreign judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into
account the fact that "generally accepted principles of
international law" are based not only on international custom,
but also on "general principles of law recognized by civilized
nations," as the phrase is understood in Article 38.1 paragraph
(c) of the ICJ Statute. Justice, fairness, equity and the policy
against discrimination, which are fundamental principles
underlying the Bill of Rights and which are "basic to legal
systems generally,"136 support the notion that the right against
enforced disappearances and the recognition of foreign
judgments, were correctly considered as "generally accepted
principles of international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in
Asia, North and South America, and Europe have passed
legislation recognizing foundlings as its citizen. Forty-two (42) of
those countries follow the jus sanguinis regime. Of the sixty,
only thirty-three (33) are parties to the 1961 Convention on
Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016
Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens.
These circumstances, including the practice of jus
sanguinis countries, show that it is a generally accepted
principle of international law to presume foundlings as having
been born of nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the Philippines to
this generally accepted principle of international law. In
particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on
Adoption, expressly refer to "Filipino children." In all of them,
foundlings are among the Filipino children who could be
adopted. Likewise, it has been pointed that the DFA issues
passports to foundlings. Passports are by law, issued only to
citizens. This shows that even the executive department,
acting through the DFA, considers foundlings as Philippine
citizens.
Adopting these legal principles from the 1930 Hague
Convention and the 1961 Convention on Statelessness is
rational and reasonable and consistent with the jus
sanguinis regime in our Constitution. The presumption of
natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines.
As the empirical data provided by the PSA show, that
presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments
on the matter of nationality of foundlings were designed to
address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive
as to their application if we are a country which calls itself
civilized and a member of the community of nations. The
Solicitor General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this
Honorable Court that those treaties and conventions were
drafted because the world community is concerned that the
situation of foundlings renders them legally invisible. It would
be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord
them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July
2006 under the provisions of R.A. No. 9225 did not result in the
reacquisition of natural-born citizenship. The COMELEC
reasoned that since the applicant must perform an act, what
is reacquired is not "natural-born" citizenship but only plain
"Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent
jurisprudence on the matter of repatriation statutes in general
and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was
explained as follows:
Moreover, repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino who lost his
citizenship will be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described
as such in several cases. They include Sobejana-Condon v.
COMELEC141 where we described it as an
"abbreviated repatriation process that restores one's Filipino
citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143where we
said that "[t]he repatriation of the former Filipino will allow him
to recover his natural-born citizenship. Parreno v. Commission
on Audit144 is categorical that "if petitioner reacquires his
Filipino citizenship (under R.A. No. 9225), he will ... recover his
natural-born citizenship."
The COMELEC construed the phrase "from birth" in the
definition of natural citizens as implying "that natural-born
citizenship must begin at birth and remain uninterrupted and
continuous from birth." R.A. No. 9225 was obviously passed in
line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to
decree that natural-born citizenship may be reacquired even
if it had been once lost. It is not for the COMELEC to disagree
with the Congress' determination.
More importantly, COMELEC's position that natural-born status
must be continuous was already rejected in Bengson III v.
HRET145 where the phrase "from birth" was clarified to mean at
the time of birth: "A person who at the time of his birth, is a
citizen of a particular country, is a natural-born citizen thereof."
Neither is "repatriation" an act to "acquire or perfect" one's
citizenship. In Bengson III v. HRET, this Court pointed out that
there are only two types of citizens under the 1987
Constitution: natural-born citizen and naturalized, and that
there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under
the present Constitution that there are only two classes of
citizens: (1) those who are natural-born and (2) those who are
naturalized in accordance with law. A citizen who is not a
naturalized Filipino, ie., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said
enumeration of a separate category for persons who, after
losing Philippine citizenship, subsequently reacquire it. The
reason therefor is clear: as to such persons, they would either
be natural-born or naturalized depending on the reasons for
the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent
Cruz was not required by law to go through naturalization
proceedings in order to reacquire his citizenship, he is perforce
a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of
Representatives.146
The COMELEC cannot reverse a judicial precedent. That is
reserved to this Court. And while we may always revisit a
doctrine, a new rule reversing standing doctrine cannot be
retroactively applied. In Morales v. Court of Appeals and
Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be
prospective in application for the reason that judicial decisions
applying or interpreting the laws of the Constitution, until
reversed, shall form part of the legal system of the Philippines."
This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule,
recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be
respected."148
Lastly, it was repeatedly pointed out during the oral arguments
that petitioner committed a falsehood when she put in the
spaces for "born to" in her application for repatriation under
R.A. No. 9225 the names of her adoptive parents, and this
misled the BI to presume that she was a natural-born Filipino. It
has been contended that the data required were the names
of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was
legally adopted. One of the effects of adoption is "to sever all
legal ties between the biological parents and the adoptee,
except when the biological parent is the spouse of the
adoptee."149 Under R.A. No. 8552, petitioner was also entitled
to an amended birth certificate "attesting to the fact that the
adoptee is the child of the adopter(s)" and which certificate
"shall not bear any notation that it is an amended
issue."150 That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court,
the Department [of Social Welfare and Development], or any
other agency or institution participating in the adoption
proceedings shall be kept strictly confidential."151 The law
therefore allows petitioner to state that her adoptive parents
were her birth parents as that was what would be stated in her
birth certificate anyway. And given the policy of strict
confidentiality of adoption records, petitioner was not
obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of
petitioner, which it cannot make in the same case for
cancellation of COC, it resorted to opinionatedness which is,
moreover, erroneous. The whole process undertaken by
COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of
whether or not petitioner committed false material
representation when she stated in her COC that she has
before and until 9 May 2016 been a resident of the Philippines
for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10)
years and eleven (11) months on the day before the 2016
elections, is true.
The Constitution requires presidential candidates to have ten
(10) years' residence in the Philippines before the day of the
elections. Since the forthcoming elections will be held on 9
May 2016, petitioner must have been a resident of the
Philippines prior to 9 May 2016 for ten (10) years. In answer to
the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10
years 11 months" which according to her pleadings in these
cases corresponds to a beginning date of 25 May 2005 when
she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her
original domicile, which is the Philippines. There are three
requisites to acquire a new domicile: 1. Residence or bodily
presence in a new locality; 2. an intention to remain there;
and 3. an intention to abandon the old domicile.152 To
successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change of
domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one and definite
acts which correspond with the purpose. In other words, there
must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she
and her family abandoned their U.S. domicile and relocated
to the Philippines for good. These evidence include petitioner's
former U.S. passport showing her arrival on 24 May 2005 and
her return to the Philippines every time she travelled abroad;
e-mail correspondences starting in March 2005 to September
2006 with a freight company to arrange for the shipment of
their household items weighing about 28,000 pounds to the
Philippines; e-mail with the Philippine Bureau of Animal Industry
inquiring how to ship their dog to the Philippines; school
records of her children showing enrollment in Philippine schools
starting June 2005 and for succeeding years; tax identification
card for petitioner issued on July 2005; titles for condominium
and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts
dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family;
March 2006 e-mail to the U.S. Postal Service confirming request
for change of address; final statement from the First American
Title Insurance Company showing sale of their U.S. home on 27
April 2006; 12 July 2011 filled-up questionnaire submitted to the
U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa
Sonora Poe (attesting to the return of petitioner on 24 May
2005 and that she and her family stayed with affiant until the
condominium was purchased); and Affidavit from petitioner's
husband (confirming that the spouses jointly decided to
relocate to the Philippines in 2005 and that he stayed behind
in the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were
even listed by the COMELEC, particularly in its Resolution in the
Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's
domicile had been timely changed as of 24 May 2005. At the
oral arguments, COMELEC Commissioner Arthur Lim conceded
the presence of the first two requisites, namely, physical
presence and animus manendi, but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the
import of all the evidence presented by petitioner on the basis
of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her
application under R.A. No. 9225 was approved by the BI. In this
regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral
arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree
that the stay of an alien former Filipino cannot be counted
until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still
an American (without any resident visa) until her reacquisition
of citizenship under R.A. No. 9225, her stay from 24 May 2005 to
7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases
are very different from her situation. In Coquilla v.
COMELEC,159 the only evidence presented was a community
tax certificate secured by the candidate and his declaration
that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to
count residence prior to his reacquisition of Philippine
citizenship. With the Court decreeing that residence is distinct
from citizenship, the issue there was whether the candidate's
acts after reacquisition sufficed to establish residence.
In Caballero v. COMELEC, 161 the candidate admitted that his
place of work was abroad and that he only visited during his
frequent vacations. In Reyes v. COMELEC,162 the candidate
was found to be an American citizen who had not even
reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the
citizenship issue. On residence, the only proof she offered was
a seven-month stint as provincial officer. The COMELEC,
quoted with approval by this Court, said that "such fact alone
is not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence
in the four cases cited by the respondents, the Court had no
choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition
of Philippine citizenship. In contrast, the evidence of petitioner
is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S.
residence (selling the house, taking the children from U.S.
schools, getting quotes from the freight company, notifying
the U.S. Post Office of the abandonment of their address in the
U.S., donating excess items to the Salvation Army, her husband
resigning from U.S. employment right after selling the U.S.
house) and permanently relocate to the Philippines and
actually re-established her residence here on 24 May 2005
(securing T.I.N, enrolling her children in Philippine schools,
buying property here, constructing a residence here, returning
to the Philippines after all trips abroad, her husband getting
employed here). Indeed, coupled with her eventual
application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is
clear that when petitioner returned on 24 May 2005 it was for
good.
In this connection, the COMELEC also took it against petitioner
that she had entered the Philippines visa-free as
a balikbayan. A closer look at R.A. No. 6768 as amended,
otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to
treat balikbayans as temporary visitors who must leave after
one year. Included in the law is a former Filipino who has been
naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan program
"providing the opportunity to avail of the necessary training to
enable the balikbayan to become economically self-reliant
members of society upon their return to the country" 164in line
with the government's "reintegration
program."165 Obviously, balikbayans are not ordinary
transients.
Given the law's express policy to facilitate the return of
a balikbayan and help him reintegrate into society, it would
be an unduly harsh conclusion to say in absolute terms that
the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his
life and reintegrate himself into the community before he
attends to the necessary formal and legal requirements of
repatriation. And that is exactly what petitioner did - she
reestablished life here by enrolling her children and buying
property while awaiting the return of her husband and then
applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's
evidence of change in domicile is extensive and
overwhelming, has as yet been decided by the Court.
Petitioner's evidence of residence is unprecedented. There is
no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v.
COMELEC,166 and the other cases cited by the respondents
that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of
residence has been decided particularly on the facts-of-the
case basis.
To avoid the logical conclusion pointed out by the evidence
of residence of petitioner, the COMELEC ruled that petitioner's
claim of residence of ten (10) years and eleven (11) months by
9 May 2016 in her 2015 COC was false because she put six ( 6)
years and six ( 6) months as "period of residence before May
13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in
November 2006. In doing so, the COMELEC automatically
assumed as true the statement in the 2012 COC and the 2015
COC as false.
As explained by petitioner in her verified pleadings, she
misunderstood the date required in the 2013 COC as the
period of residence as of the day she submitted that COC in
2012. She said that she reckoned residency from April-May
2006 which was the period when the U.S. house was sold and
her husband returned to the Philippines. In that regard, she
was advised by her lawyers in 2015 that residence could be
counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in
2012 (period of residence before 13 May 2013) as inquiring
about residence as of the time she submitted the COC, is
bolstered by the change which the COMELEC itself introduced
in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC
would not have revised the query if it did not acknowledge
that the first version was vague.
That petitioner could have reckoned residence from a date
earlier than the sale of her U.S. house and the return of her
husband is plausible given the evidence that she had returned
a year before. Such evidence, to repeat, would include her
passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the
2012 COC as a binding and conclusive admission against
petitioner. It could be given in evidence against her, yes, but it
was by no means conclusive. There is precedent after all
where a candidate's mistake as to period of residence made
in a COC was overcome by evidence. In Romualdez-Marcos
v. COMELEC,167 the candidate mistakenly put seven (7)
months as her period of residence where the required period
was a minimum of one year. We said that "[i]t is the fact of
residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an
individual has satisfied the constitutions residency qualification
requirement." The COMELEC ought to have looked at the
evidence presented and see if petitioner was telling the truth
that she was in the Philippines from 24 May 2005. Had the
COMELEC done its duty, it would have seen that the 2012
COC and the 2015 COC both correctly stated
the pertinent period of residency.
The COMELEC, by its own admission, disregarded the
evidence that petitioner actually and physically returned here
on 24 May 2005 not because it was false, but only because
COMELEC took the position that domicile could be established
only from petitioner's repatriation under R.A. No. 9225 in July
2006. However, it does not take away the fact that in reality,
petitioner had returned from the U.S. and was here to stay
permanently, on 24 May 2005. When she claimed to have
been a resident for ten (10) years and eleven (11) months, she
could do so in good faith.
For another, it could not be said that petitioner was
attempting to hide anything. As already stated, a petition
for quo warranto had been filed against her with the SET as
early as August 2015. The event from which the COMELEC
pegged the commencement of residence, petitioner's
repatriation in July 2006 under R.A. No. 9225, was an
established fact to repeat, for purposes of her senatorial
candidacy.
Notably, on the statement of residence of six (6) years and six
(6) months in the 2012 COC, petitioner recounted that this was
first brought up in the media on 2 June 2015 by Rep. Tobias
Tiangco of the United Nationalist Alliance. Petitioner appears
to have answered the issue immediately, also in the press.
Respondents have not disputed petitioner's evidence on this
point. From that time therefore when Rep. Tiangco discussed it
in the media, the stated period of residence in the 2012 COC
and the circumstances that surrounded the statement were
already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought
up in the SET petition for quo warranto. Her Verified Answer,
which was filed on 1 September 2015, admitted that she
made a mistake in the 2012 COC when she put in six ( 6) years
and six ( 6) months as she misunderstood the question and
could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when
petitioner accomplished her COC for President on 15 October
2015, she could not be said to have been attempting to hide
her erroneous statement in her 2012 COC for Senator which
was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or
even hint at an intention to hide the 2012 statement and have
it covered by the 2015 representation. Petitioner, moreover,
has on her side this Court's pronouncement that:
Concededly, a candidate's disqualification to run for public
office does not necessarily constitute material
misrepresentation which is the sole ground for denying due
course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his
COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a
deliberate intent to mislead, misinform or hide a fact which
would otherwise render a candidate ineligible. It must be
made with an intention to deceive the electorate as to one's
qualifications to run for public office.168
In sum, the COMELEC, with the same posture of infallibilism,
virtually ignored a good number of evidenced dates all of
which can evince animus manendi to the Philippines
and animus non revertedi to the United States of America. The
veracity of the events of coming and staying home was as
much as dismissed as inconsequential, the focus having been
fixed at the petitioner's "sworn declaration in her COC for
Senator" which the COMELEC said "amounts to a declaration
and therefore an admission that her residence in the
Philippines only commence sometime in November 2006";
such that "based on this declaration, [petitioner] fails to meet
the residency requirement for President." This conclusion, as
already shown, ignores the standing jurisprudence that it is the
fact of residence, not the statement of the person that
determines residence for purposes of compliance with the
constitutional requirement of residency for election as
President. It ignores the easily researched matter that cases on
questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number,
weight and substance than that presented by petitioner. 169 It
ignores, above all else, what we consider as a primary reason
why petitioner cannot be bound by her declaration in her
COC for Senator which declaration was not even considered
by the SET as an issue against her eligibility for Senator. When
petitioner made the declaration in her COC for Senator that
she has been a resident for a period of six (6) years and six (6)
months counted up to the 13 May 2013 Elections, she naturally
had as reference the residency requirements for election as
Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments
before us that at the time the declaration for Senator was
made, petitioner did not have as yet any intention to vie for
the Presidency in 2016 and that the general public was never
made aware by petitioner, by word or action, that she would
run for President in 2016. Presidential candidacy has a length-
of-residence different from that of a senatorial candidacy.
There are facts of residence other than that which was
mentioned in the COC for Senator. Such other facts of
residence have never been proven to be false, and these, to
repeat include:
[Petitioner] returned to the Philippines on 24 May 2005.
(petitioner's] husband however stayed in the USA to finish
pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother
in San Juan City. [Petitioner] enrolled Brian in Beacon School in
Taguig City in 2005 and Hanna in Assumption College in
Makati City in 2005. Anika was enrolled in Learning Connection
in San Juan in 2007, when she was already old enough to go
to school.
In the second half of 2005, [petitioner] and her husband
acquired Unit 7F of One Wilson Place Condominium in San
Juan. [Petitioner] and her family lived in Unit 7F until the
construction of their family home in Corinthian Hills was
completed.
Sometime in the second half of 2005, [petitioner's] mother
discovered that her former lawyer who handled [petitioner's]
adoption in 1974 failed to secure from the Office of the Civil
Registrar of Iloilo a new Certificate of Live Birth indicating
[petitioner's] new name and stating that her parents are
"Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order
to supervise the disposal of some of the family's remaining
household belongings.1a\^/phi1 [Petitioner] returned to the
Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United
States Postal Service of the family's abandonment of their
address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in
the US. He returned to the Philippines on 4 May 2006 and
began working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant
lot in Corinthian Hills, where they eventually built their family
home.170
In light of all these, it was arbitrary for the COMELEC to satisfy
its intention to let the case fall under the exclusive ground of
false representation, to consider no other date than that
mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence
of petitioner for her candidacy as President of the Republic,
the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of
discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC
Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of
the Philippines in the May 9, 2016 National and Local Elections
filed by respondent Mary Grace Natividad Sonora Poe-
Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC
First Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-
007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; and
SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
stating that:
WHEREFORE, premises considered, the Commission RESOLVED,
as it hereby RESOLVES, to GRANT the petitions and cancel the
Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En
Banc, upholding the 1 December 2015 Resolution of the
Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED,
as it hereby RESOLVES, to DENY the Verified Motion for
Reconsideration of SENATOR MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES. The Resolution dated 11
December 2015 of the Commission First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En
Banc, upholding the 11 December 2015 Resolution of the First
Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED
QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.
SO ORDERED.