edca comment

5/19/2018 EDCA Comment

1/32

REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

EN BANC

BAGONG ALYANSANGMAKABAYAN (BAYAN),represented by its Secretary General,RENATO M. REYES, JR., et al.,

Petitioners,

- versus -

DEPARTMENT OF DEFENSESECRETARY VOLTAIREGAZMIN, et al.,

Respondents.x------------------------------------------------x

RENE A.V. SAGUISAG, et al.,Petitioners,

- versus -

EXECUTIVE SECRETARYPAQUITO N. OCHOA, JR., et al.,

Respondents.x------------------------------------------------x

KILUSANG MAYO UNO,represented by its Chairperson,ELMER LABOG, et al.,

Petitioners-in-Intervention.x------------------------------------------------x

RENE A.Q. SAGUISAG, JR.,Petitioner-in-Intervention.

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

G.R. No. 212426

G.R. No. 212444


2/32

Consolidated Comment 2 G.R. Nos. 212444, 212426

CONSOLIDATED COMMENT

The Enhanced Defense Cooperation Agreement is an implementing devise for

the Republicsgeneral commitments under the Mutual Defense Treaty and its specificcommitments under the Visiting Forces Agreement. The President as Commander-in-Chief, Chief Executive, and Chief Architect of foreign policy has the constitutionalauthority and duty to maintain the integrity of the national territory, promote nationalsecurity, secure peace and prevent hostilities. The formulation and execution of thedetails of a national defense policy require the highest possible judicial deference.

Respondents, through the Office of the Solicitor General (OSG),respectfully state:

RELEVANT FACTS

1. The Mutual Defense Treaty. On 30 August 1951, the Republic ofthe Philippines and the United States of America (US) entered into theMutual Defense Treaty (MDT) which stipulates that the parties shallmaintain and develop their individual and collective capacity to resistarmed attack.1The MDT, concurred in by the Philippine Senate on 12May 1952,2 locates the parties obligations within their commitmentsunder the Charter of the United Nations (UN). Article I of the MDTprovides:

The Parties undertake, as set forth in the Charter of the UnitedNations, to settle any international disputes in which they may beinvolved by peaceful means in such a manner that international peaceand security and justice are not endangered and to refrain in theirinternational relations from the threat or use of force in any mannerinconsistent with the purposes of the United Nations.

2.

The Visiting Forces Agreement.To implement the MDT and theobjective of both parties to strengthen their present efforts to collectivedefense for the preservation of peace and security,3the Republic of thePhilippines and the US entered into the Visiting Forces Agreement (VFA)

on 10 February 1998.The VFA was concurred in by the Philippine Senateon 27 May 1999.4It lays down the terms and conditions under which USpersonnel5 and facilities6 may be present in the Philippines. Under the

VFA, the Philippines and the US have participated in the annual Balikatanexercises, which involve the training of Philippine troops to enhance

1MDT, Art. II.2S.R. No. 84, 12 May 1952.3VFA, Preamble.4S.R. No. 18, 27 May 1999.5VFA, Article I.6VFA,Article VII.


3/32


defense capabilities and promote interoperability of Philippine and USforces.7

3.

The Enhanced Defense Cooperation Agreement. To implement theMDT and the VFA,8 the Enhanced Defense Cooperation Agreement(EDCA) was signed by Department of National Defense (DND)Secretary Voltaire Gazmin for the Philippines and by US Ambassador tothe Philippines Philip Goldberg for the US on 28 April 2014.

4. Two petitions under Rule 65 of the Rules of Court, i.e. theBAYANPetition in G.R. No. 212444 and the SaguisagPetition in G.R.No. 212426, seek to declare the EDCA unconstitutional and to prohibit

its implementation. In a Resolution dated 03 June 2014, the HonorableCourt ordered the consolidation of these petitions and requiredrespondents to comment.

5. Subsequently, petitions-in-intervention were filed by KilusangMayo Uno, et al. and Rene A.Q. Saguisag, Jr. On 08 July 2014, theHonorable Court resolved to require respondents to comment on thepetitions-in-intervention, without giving due course to the said petitions.

6.

Considering that the petitions involve common questions oflaw, respondents filed a Motion to File a Consolidated Comment on 12August 2014. On the same date, respondents moved for an additionalextension of time to file the Consolidated Comment because the OSG hasnot yet received a copy of the petition-in-intervention filed by Rene A.Q.Saguisag, Jr.

7. To date, the Honorable Court has not yet issued a resolutionon these motions. In the interest of time, respondents hereby file this

Consolidated Comment to the petitions.

PRELIMINARYAVERMENTS

8. Lack of Standing to Assert Institutional Prerogatives.Petitioners assail the constitutionality of the EDCA on the ground that itis a treaty that requires the concurrence of the Senate under Article XVIII,Section 25 of the Constitution. However, none of the petitioners is a

member of the Senate.

7 Terms of Reference approved by Department of Foreign Affairs Secretary Teofisto T.Guingona, cited in Lim v. Executive Secretary, G.R. No. 151445, 11 April 2002.8EDCA, Preamble.


4/32


9. The rule is that only incumbent Senators have standing toraise the issue of Senate concurrence because it is their constitutionalfunction that is allegedly impaired.9The Honorable Court has ruled that

only incumbent Senators may raise this issue because they alone havelegal standing to see to it that the prerogative, powers and privilegesvested by the Constitution in their office remain inviolate.10 It is acurious fact that only former Senators joined petitioners in filing thesecases. As such, they are in no position to concur in the EDCA and thusare not injured by the alleged lack of Senate concurrence.

10. There is also no allegation that somehow the members of theSenate have been prevented from exercising their privileges. Absent any

evidence that Senators have been prevented from invoking the privilegesof their institution, the Honorable Court may well presume that theSenate itself sees no need for such concurrence. Otherwise, theHonorable Court could end up arbitrating constitutional questions andallocat[ing] constitutional boundaries11 without a dispute upon theinstance of third parties, however well-intentioned.

11. Inappropriateness of Taxpayer Standing. Petitioners cannot alsosue as taxpayers because the EDCA is neither a tax measure, nor one

directed at the disbursement of public funds. In the absence of credibleallegation of an illegal or unconstitutional disbursement of public funds,the Honorable Court cannot simply take at face value petitioners bareassertion of their right to sue as taxpayers. The Honorable Court shouldavoid being goaded into assuming jurisdiction at the say-so of anyone whopays taxes.

12. The Inapplicability of the Transcendental Importance Exception.Themere invocation of transcendental importance cannot also conferstanding on petitioners. In Anak Mindanao Party-List Group v. ExecutiveSecretary,12 the Honorable Court held that a party who assails theconstitutionality of a statute must have a direct and personal interest. Itmust show not only that the law or any governmental act is invalid, butalso that it sustained or is in immediate danger of sustaining some directinjury as a result of its enforcement, and not merely that it suffers therebyin some indefinite way.13 Petitioners cannot use transcendentalimportance to cure their inability to comply with the constitutionalrequirement of standing. As the Honorable Court said, [c]ourts do not sit

9CONSTITUTION, Art. VII, Sec. 21. No treaty or international agreement shall be valid andeffective unless concurred in by at least two-thirds of all the Members of the Senate.10Biraogo v. The Philippine Truth Commission, G.R. No. 192935, 07 December 2010.11Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936.12G.R. No. 166052, 29 August 2007.13Id.


5/32


to adjudicate mere academic questions to satisfy scholarly interest therein,however intellectually solid the problem may be.14

13.

At this time in our constitutional history, the HonorableCourt should already note that the overuse of transcendentalimportance as an exception to the traditional requirements forconstitutional litigation has cheapened the value of the constitutionssafeguards to adjudicationcase or controversy, standing, prematurity,political questions, mootnessthat have long served to protect theSupreme Court from unnecessary litigation of constitutional questionsand potential clashes with the other departments of government.

14.

Policy questions. Objections have been raised against theEDCA on the ground that it is highly disadvantageous to the PhilippineGovernment. It is argued that [a]lthough [the EDCA] was signed in the

context of heightened tension with China and dangled as proof of

Americas ironclad commitment to defend the Philippines againstChinese expansionism, there is no assurance that the United States will

actually come to the aid of the Philippines in case of invasion by China.15

It is also claimed that [t]he terms and provisions of the EDCA are an

affront to the national interest as they are evidently lopsided in favor of

the [US].16

15. There is a difference between political posturing and a legalargument. Whether the EDCA is highly disadvantageous to thePhilippine Government or lopsided in favor of the [US]is not a legalquestion that can serve as a basis for a sound legal argument. Whilerespondents maintain that it is in the interest of the Philippines to enterinto the EDCA, the Honorable Court is not the appropriate forum tosettle these policy questions. Under the democratic framework of theConstitution, petitioners should address their advocacies to the politicalbranches of government. Petitioners cannot simply ask the HonorableCourt to arbitrate policy questions, especially in matters of nationalsecurity and foreign affairs. We urge the Honorable Court to distinguishbetween political speech and constitutional argument.

16. In the language and principles of the Constitution, we canfind a rational separation between debates that should be made in aspecial legal forum such as the Supreme Court, on one hand, whose

jurisdiction is bounded by the requirements of Article VIII, Sections 1

14Philippine Association of Universities and Colleges v. Secretary of Education, G.R. No. L-5279, 31October 1955.15SaguisagPetition, p. 36.16Id. at 39.


6/32


and 5, and those that should be held in law schools, the various media,and on the streets, on the other hand.

17.

In fact, it is entirely within the Honorable Courts discretionto rule separately (that is, in a separate resolution) on the jurisdictionalquestions presented in the various petitions in these consolidated cases.Such decisional strategy would provide a specific occasion for theHonorable Court to seriously tackle the question whether a decision onthe substantive questions should be had in the first place. Too many caseshave been decided on the merits by the Honorable Court that perhapsshould have been decided with a more deliberate focus on thejurisdictional questions.

18.

In any case, since the EDCA is an implementing agreementof the MDT and the VFA, policy questions relating to activities involving

American troops and facilities have long been settled by the politicalbranches through their continued implementation of these internationalagreements. The Honorable Court has consistently affirmed theconstitutionality of the MDT and the VFA in Bayan v. Zamora,17 Lim,

Nicolas v. Romulo18 and Arigo v. Swift.19The Honorable Court declared inLim that [i]t is the VFA which gives continued relevance to the MDT

despite the passage of years.20

In Arigo, the Honorable Court said that[t]he VFA [is] a valid and binding agreement [and that] the parties arerequired as a matter of international law to abide by its terms andprovisions.21

19. Consistent with the foregoing characterization, the President,through the DND, entered into the EDCA to implement the policies andtreaty commitments embodied in the MDT and the VFA to advance thesecurity interests of the Philippines.

20.

In Bayan, the Honorable Court declared

[b]y constitutional fiat and by the intrinsic nature of his office,the President, as head of State, is the sole organ and authority in theexternal affairs of the country. In many ways, the President is the chiefarchitect of the nations foreign policy; his dominance in the field offoreign relations isconceded. Wielding vast powers and influence,his conduct in the external affairs of the nationis executivealtogether.22

17G.R. No. 138570, 10 October 2000.18G.R. No. 175888, 11 February 2009.19G.R. No. 206510, 16 September 2014.20Lim v. Executive Secretary, supra note 7 at 752.21Supranote 19 at 20.22Supra note 17.


7/32


As the Chief Executive and architect of the nations foreign policy, thePresident, through the DND, negotiated and ratified the EDCA toimplement existing treaty commitments under the MDT and the VFA. As

Commander-in-Chief23

and protector of the Filipino people,24

thePresident entered into the EDCA to uphold the security interests of thePhilippines.

21. Prematurity and speculations. The EDCA provides forseparate agreements to carry out specific activities such as joint exercises,the prepositioning of materiel, or construction activities. Under theEDCA, every instance of defense cooperation is subject to either existingbilateral mechanisms or the requirement of subsequent implementingagreements. This arrangement is consistent with the VFA because the

VFA requires approval for specific activities by the PhilippineGovernment. This arrangement serves as the individualized consentmechanism in favor of the Philippines to approve activities before theyare undertaken within its territory.

22. For example, the Agreed Locations under the EDCA willbe determined through mutual agreement, to be specified either throughan annex or implementing arrangement.25To date, the parties have not yetfinalized the list of Agreed Locations either through an annex or a

separate agreement.

23. Authorization to preposition materiel will be secured throughbilateral security mechanisms, such as the MDB and SEB.26The MutualDefense Board (MDB) and Security Engagement Board (SEB) are jointbodies composed of military and diplomatic officials from the Philippinesand the US. The MDB coordinates the implementation of mutual defenseactions pursuant to the MDT,27while the SEB focuses on non-traditionalsecurity concerns, such as terrorism, transnational crimes, maritime

security, and natural and man-made disasters.28These institutions will be

23CONSTITUTION, Art. VII, Sec. 18.24CONSTITUTION,Art. II, Sec. 3.25EDCA, Art. II, par.4.26EDCA, Art. IV, par.1.27The MDB was created through the 1958 Bohlen-Serrano Exchange of Notes to providecontinuing inter-governmental machinery for direct liaison and consultation betweenappropriate Philippine and United States authorities on military matters of mutual concernso as to develop and improve, through continuing military cooperation, the common

defense of the two countries. The creation of the MDB was provided by the Mutual DefenseTreaty between the Philippines and the United States. It is co-chaired by the AFP Chief ofStaff and the US Pacific Command Commander. Seehttp://www.vfacom.ph/content/article/FAQs.28Id.The SEB was created through the 2006 Romulo-Kenney Exchange of Notes to providea framework and mechanism for direct and continuing liaison and consultation on non-traditional security concerns such as, but not limited to: terrorism, transnational crimes,maritime security and safety, natural and man-made disasters, between the appropriate


8/32


the venues for consultation and agreement as to the nature, quantity, anddisposition of materiel to be stored in Agreed Locations.

24.

Petitioners speculate that the separate agreements under theEDCA will violate various Philippine laws and operate as a blank check tobroaden the coverage of the EDCA.29These speculations cannot be thebasis of a constitutional challenge. In the first place, one has to assumethat these separate agreements will be consistent with the Constitution,our laws, and international obligations, as is clearly stated in the EDCA.In the second place, whether these separate agreements will violatePhilippine laws or unlawfully expand the EDCA cannot be determined inadvance. This simply cannot be done because the EDCA has not yet been

implemented.

25. For a case to be considered ripe for adjudication, [i]t is aprerequisite that something had by then been accomplished orperformedbefore a court may come into the picture.30The fact thatthe EDCA provides for specific agreements to undertake definedactivities reinforces Philippine sovereignty because consent of thePhilippines is required before these activities are undertaken within itsterritory. This arrangement also shows that the EDCA is an implementing

agreement of the VFA, because it follows the framework of the VFArequiring that any activitybe approved by the Philippine Government.

ISSUE

WHETHER THE ENHANCED DEFENSECOOPERATION AGREEMENT IS UNCONSTITUTIONAL.

SUMMARYOFARGUMENTS

I. THE EDCA IS AN EXECUTIVE AGREEMENTENTERED INTO BY THE PRESIDENT IN THEPERFORMANCE OF HIS PRIME DUTY TODEFEND NATIONAL SECURITY.

Philippine and United States authorities; develop measures and arrangements for enhancedcooperation in connection therewith, and appropriate common security interests of the twosovereign countries. The SEB complements the MDB.29BAYANPetition, p. 28-29.30Tan v. Macapagal, G.R. Nos. L-34161, 29 February 1972.


9/32


A.The President is Constitutionally Mandatedto Promote National Security Interests: ThePresidents Power to Maintain Peace and

Security.

B.Constitutional Law and the PracticalConsiderations of this Case RequireDeferential Review of Executive Decisionsover National Security.

C.The MDT, VFA, and EDCA are SecurityAgreements.

II. THE EDCAIS AN EXECUTIVEAGREEMENT,ANDTHEREFORE DOES NOT REQUIRE SENATECONCURRENCE.

A.The EDCA Implements the MDT.

B.The EDCA Implements the VFA.

C.The VFA is the Standing Authority forActivities Approved by the PhilippineGovernment Relating to Security Interests ofthe Philippines and the United States.

D.The EDCA, as an Implementing Agreement,Does Not Require Senate Concurrence.

III. ASSORTED ISSUES RAISED BY THE PETITIONS.

A.The MDT Cannot Be Collaterally Attacked;Its Validity Has Already Been JudiciallyRecognized in Limand Nicolas.

B.The EDCA Does Not Authorize the Entry ofNuclear Weapons Into the Philippines.

C.The EDCA Does Not Deprive PhilippineCourts of Jurisdiction.


10/32


D.The EDCA Does Not Violate ConstitutionalPolicy and Existing Laws.

DISCUSSION

I.THE EDCA IS AN EXECUTIVE AGREEMENT ENTEREDINTO BY THE PRESIDENT IN THE PERFORMANCE OF HISPRIME DUTY TO DEFEND NATIONAL SECURITY.

A. The President is Constitutionally Mandated to Promote NationalSecurity Interests: The Presidents Power to Maintain Peace andSecurity.

26. The President, through the DND, entered into the EDCA toperform his primary constitutional duty to promote national securityinterests. Under Article II, Section 4 of the Constitution, the President, ashead of State and chief representative of government, has the prime dutyto serve and protect the people. The President is the Commander-in-Chief of the Armed Forces of the Philippines, which is constitutionallydesignated as the protector of the people and the State.31 Article II,Section 3 of the Constitution provides that [t]he goal [of the ArmedForces of the Philippines] is to secure the sovereignty of the State and theintegrity of the national territory of the Philippines. The NationalDefense Act provides that [t]he national defense policy of thePhilippines is the preservation of the State.32 These are undisputedconstitutional and statutory grounding.

27. The President entered into the EDCA in the performance ofhis highest constitutional duty, because he did so to protect the integrityof the Philippine State.33 Under Article I of the EDCA, the goals ofimproving interoperability between Philippine and US forces and thedefense capability of the AFP are meant to (1) maintain and developadditional maritime security [and] maritime domain awareness and (2) toimprove the ability to render humanitarian assistance and disaster relief orHADR.

31CONSTITUTION, Art. II, Sec. 3.32C.A. No. 1, as amended, Sec. 2.33Territory is an integral part of a State. Montevideo Convention on the Rights and Dutiesof States, 26 December 1933, Art. 1. The state as a person of international law shouldpossess the following qualifications: a) a permanent population; b) a defined territory; c)government; and d) capacity to enter into relations with the other states.


11/32


28. Thus, from the Philippine perspective, the objectives of theEDCA are twofold: (1) externally, to secure the territorial integrity of thePhilippine State and (2) internally, to improve the capability to render

HADR in light of emergencies or disasters that were recently experiencedby the country. Both the external and internal aspects of the EDCA aremeant to advance the national security of the Philippines.

29. National security relates to common defensethepreservation of the public peace as well as against the internal convulsionsas external attacksthe superintendence of our intercourse, political andcommercial, with foreign countries.34 National security necessarilysubsumes foreign relations when it involves the sovereignty of a State.

The security of the Philippines is envisioned to be advanced through theEDCAs objective of strengthen[ing] international and regionalsecurity.35

30. Authority to Maintain Security and Prevent War. In Marcos v.Manglapus,36 the Honorable Court ruled that in making the Presidentcommander-in-chief, the enumeration of powers that follow cannot besaid to exclude the Presidents exercising as Commander-in-Chief powersshort of the calling of the armed forces, or suspending the privilege of the

writ of habeas corpus or declaring martial law, in order to keep the peace,and maintain public order and security.37Thus, the Presidents power asCommander-in-Chief does not become relevant only during an actual war.

As Commander-in-Chief, it is the Presidents duty to take preparatoryandpreventive measures against potential and actual threats to nationalsecurity. This constitutional authority must be given the widest possiblebreathing space in order that the President can select from a whole rangeof possible actions.

31.

The Honorable Court cannot decide the present case withoutconsidering the international platform of politics in which we currentlyfind ourselves situated. Recent events within Philippine territoryundoubtedly compromise the security of the Philippines. The HonorableCourt should not render the President helpless or impair his ability to setup a national security apparatus in the face of clear, present, and verifiedreports of activities that endanger the integrity of the Philippine State.

32. As Chief Executive, Commander-in-Chief, and ChiefArchitect of foreign policy, the President has the constitutional authorityand duty to enter into agreements for the defense of national territory and

34 THE FEDERALIST NO. 23 (Alexander Hamilton). See L. Donohue, The Limits of NationalSecurity, 48AM.CRIM.L.REV.1573 (2011), 1576.35EDCA, Preamble.36G.R. No. 88211, 15 September 1989.37Id.


12/32


maintenance of regional security. The breadth and scope of thisconstitutional authority is co-extensive with the nature of the dangerapprehended by the President who has control over the national security

apparatus. The present controversy is also concerned with

such an authority plus the very delicate, plenary and exclusivepower of the President as the sole organ of thegovernment in thefield of international relationsa power which does not require asbasis for its exercise an act of Congress, but which of course, like othergovernmental power, must be exercised in subordination to theapplicable provisions of the Constitution.38

33. We invite the Honorable Court to be mindful of the reality

that geopolitical concerns today involve transboundaries. Thus, the linebetween domestic and regional or national and international issues is nolonger as easy to demarcate. Thus, for instance, the enforcement of Stateterritory is not only achieved through clarity in international norms, butcrucially through tangible security and defense build-up measuresundertaken by states. Advances in technology have made the seas andoceans a crucial component in defining territorial entitlements.

34. Article I of the EDCA provides that it is meant to address the

AFPsshort-term capabilities gaps, promoting long-term modernization,and helping maintain and develop additional maritime security, maritimedomain awareness, and humanitarian assistance and disaster reliefcapabilities.39 These, among others, are the security and defensemeasures that the Philippines needs to achieve a minimum credibledefense to the manifold security concerns in the West Philippine Sea.

35. Article II, Section 7 of the Constitution provides that [t]heState shall pursue an independent foreign policy. In its relations with

other states the paramount consideration shall be national sovereignty,territorial integrity, national interest, and the right to self-determination.Article XII, Section 2 of the Constitution provides that [t]he State shallprotect the nations marine wealth in its archipelagic waters, territorial sea,and exclusive economic zone, and preserve its use and enjoymentexclusively to Filipino citizens. The Honorable Court must allow thePresident to protect our maritime entitlements. National security, throughthe defense of national territory, invokes the highest duty of the Presidentand all Filipino citizens under the Constitution.

36.

Internal Security through HADR. Another objective of theEDCA addresses the internal security of the Philippines by improving theability to provide HADR, either through joint operations between

38U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 320.39EDCA, Art. I.


13/32


Philippine and US forces or through the AFPs own capacity which isintended to be developed under the EDCA. The countrys experience

with Typhoon Haiyan last November 2013 has made us acutely aware of

the need to develop HADR capability to provide immediate response todisaster-stricken areas. Moreover, this experience underscores not onlythe fact that disaster response requires more than the immediate rescue ofsurvivors, but also that grave calamities require international effort.

37. Under the AFP Modernization Act, HADR is a key role ofthe AFP, which is mandated to protect the people not only from armedthreats but from the ill effects of life-threatening and destructiveconsequences of natural and man-made disasters and calamities, including

typhoons, earthquakes, volcanic eruptions.40

The EDCA seeks, amongothers, to enhance the AFPs HADR capabilities through the availabilityof prepositioned materiel.

38. Even as the AFP continues to develop its disaster responsecapabilities, the magnitude of some calamities may require response fromthe international community. Close coordination and interoperability withforeign forces, including units of the US, will be critical. For specificHADR missions such as search and rescue and aid delivery, the capability

to immediately and seamlessly conduct joint operations may spell thedifference between life and death.

B. Constitutional Law and the Practical Considerations of this CaseRequire Deferential Review of Executive Decisions Over NationalSecurity.

39. In the Federalist Papers, Alexander Hamilton said that

powers relating to common defense ought to exist without limitation,because it is impossible to foresee or define the extent and variety ofnational exigencies, or the correspondent extent and variety of themeans which may be necessary to satisfy them.41 While theConstitution has placed limits on any governmental act by imposing uponthe Judiciary the duty to determine grave abuse of discretion, courts haveinvariably maintained a deferential attitude to executive decisions onmatters of national security.42

40. In any case, the exercise of the authority to uphold nationalsecurity has barely any limitations, for the President must be given the

40Republic Act 7898, Sec. 3(c).41Emphasis in the original, supra note 37.42David v. Macapagal-Arroyo, G.R. No. 171396, 3 May 2006; IBP v. Zamora, G.R. No. 141284,15 August 2000;Marcos v. Manglapus, supra note 36.


14/32


widest latitude in balancing the nationslimited options and calibrating hisresponses to ensure their maximum intended effect. In light of the realitythat the nuances of foreign policy and international relations are best left

to agencies and instrumentalities of governmentall of whom under thecontrol of the Presidentwith institutional capacity to plan and executethe Presidents national defense policy, it stands to reason that courtsmust approach this case with deference to a foreign policy decisionalready made.

41. Judicial deference to decisions relating to national security isalso required by the principle of separation of powers. Consistent withHamiltonsview, norms articulated in a judicial decision may inadvertently

deprive the government of specific and graduated remedies to addresspressing national security concerns, because it is impossible to foresee ordefine the extent and variety of national exigencies. By constitutionaldesign, the Judiciary does not have the institutional capacity to appreciatethe severity and scope of a national security problem and the propriety ofthe means to address it.

42. Lest we forget, the Judiciary also has the constitutional dutyto uphold national security and protect national territory in the

performance of its judicial function. The Constitution imposes the duty toprotect and serve the people on the entire government of thePhilippines.43The National Defense Act provides that [t]he preservationof the State is the obligation of every citizen.44A necessary part of thisconstitutional and statutory duty of the Judiciary is to exercise utmostdeference to the Executive when it undertakes national security measuresto defend the security of the Republic.

C. The MDT, VFA and EDCA are Security Agreements.43. The MDT, VFA and EDCA are security agreements. They

are meant to promote the common internal and external security interestsof the Philippines and the US. They were entered into by the President inthe performance of his prime duty to uphold the national security of thePhilippines.

44. The MDT provides that the parties desire tofurtherstrengthen their present efforts to collective defense for thepreservation of peace and security pending the development of a morecomprehensive system of regional security in the Pacific Area. Article IIof the MDT states that [i]n order to more effectively achieve the

43CONSTITUTION, Art. II, Sec. 4.44C.A. No. 1, Section 2(a).


15/32


objective of [the MDT], the Parties separately and jointly by self-help andmutual aid will maintain and develop their individual and collectivecapacity to resist armed attack. Thus, the MDT does not only

contemplate the defense against an actual armed attack, but theundertaking of security measures to maintain and developindividualand collective capacity to resist armed attack.

45. The VFA expressly reaffirms the MDT.45While reaffirmingthe purposes and principles of the Charter of the United Nations (UNCharter), the VFA provides that the parties desire to strengtheninternational and regional security in the Pacific area and thatcooperation between the US and the Republic of the Philippines

promotes their common security interests.46

The VFA is meant to allowactivities approved by the Philippine Government relating to individualand common security interests of the Philippines and the US.

46. The EDCA reaffirms the MDT and the VFA. It reiterates thepurpose of these prior agreements by providing that while the Philippinesand the US reaffirm the purposes and principles of the UN Charter, bothcountries desire to strengthen international and regional security. ArticleI of the EDCA provides that it is intended to deepen[ ] defense

cooperation between the Parties and maintain[ ] and develop[ ] theirindividual and collective capacities, in furtherance of Article II of theMDT

II.THE EDCA IS AN EXECUTIVE AGREEMENT, ANDTHEREFORE DOES NOT REQUIRE SENATECONCURRENCE.

47.

Petitioners arguments are anchored on their interpretation ofArticle XVIII, Section 25 which, in their belief, either nullifies or limitsthe application of the MDT or suspends the operation of the EDCA.

48. The EDCA explicitly provides that it is an implementingagreement of the MDT and the VFA

Article IPURPOSE AND SCOPE

1. This Agreement deepens defense cooperation between theParties and maintains and develops their individual and collectivecapacities, in furtherance of Article II of the MDT, which states that

45VFA, Preamble.46VFA, Preamble.


16/32


the Parties separately and jointly by self-help and mutual aid willmaintain and develop their individual and collective capacity to resistarmed attack, and within the context of the VFA.

49.

Under Article 31(1) of the Vienna Convention on the Law ofTreaties, [a] treaty shall be interpreted in good faith in accordance withthe ordinary meaning to be given to the terms of the treaty in theircontext and in the light of its object and purpose.

50. By its own express terms, the EDCA declares itself to be animplementing agreement of the VFA and the MDT and as such does notrequire Senate concurrence to be valid and effective.47 Thus, it isdifficult to maintain petitioners contrary position because it is

contradicted by the text of the EDCA. The only way petitionersarguments will make sense is if we reject the plain reading of the languageof the text they seek to impugn.

51. As will be discussed below, the EDCA is nothing more thanan implementing agreement of the MDT and the VFA not only by itsexpress declaration, but also by its purpose, scope and operativeprovisions. In other words, while the EDCA is an important securityagreement, the necessary licenses or authorities for its operative

provisions are found in the general and specific language of either theMDT or the VFA or both.

A.The EDCA Implements the MDT.

52. In entering into the MDT, the US and the Philippines seek,among others, to declare publicly and formally their sense of unity andtheir common determination to defend themselves against external armed

attack and further strengthen their present efforts to collective defensefor the preservation of peace and security pending the development of amore comprehensive system of regional security in the Pacific Area.48Toachieve these objectives, the MDT provides:

ARTICLE II

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

47CONSTITUTION, Art. VII, Sec. 21.48MDT, Preamble.


17/32


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 theterritorial integrity, political independence or security of either of theParties is threatened by external armed attack in the Pacific.

53. As the core defense relationship between the Philippines andthe US, the MDT seeks the enhancement of the strategic andtechnological capabilities of the parties armed forces.49 The specificlanguage of Article II above includes acts preparatory to allied defenseoperations. The language of the MDT does not limit its application tosituations when either party is already under armed attack. The objective ofthe MDT, as stated in Article II, is to enhance the parties capability toprevent or resist a possible armed attack. The underlying idea behind theMDT is the concept of mutual defense.

54. This concept of mutual defense is carried over to the EDCA,the purpose of which is to enhance defense cooperation.The purpose, scopeand operative provisions of the EDCA implement the MDT. Article I ofthe EDCA provides that its purpose is the furtherance of Article II ofthe MDT, which states that the Parties separately and jointly by self-helpand mutual aid will maintain and develop their individual and collectivecapacity to resist armed attack.

55. The purposes of the EDCAto [s]upport[ ] the Partiesshared goal of improving interoperability of the Parties forces, and forthe Armed Forces of the Philippines (AFP), [to address its] short-termcapabilities gaps, promoting long-term modernization, and helpingmaintain and develop additional maritime security, maritime domainawareness, and humanitarian assistance and disaster relief capabilities50properly fall within the MDTs objective of developing the defensecapabilities of the Philippines and the US. The EDCA implements theMDT by providing for a mechanism that promotes optimal cooperationbetween the US and the Philippines.

B. The EDCA Implements the VFA.

56. The purpose, scope and operative provisions of the EDCAimplement the VFA. The EDCA follows the VFA by requiring thatactivities(whether in relation to troops or facilities) to be undertaken in thePhilippines be approved by the Philippine Government. This consentmechanism ensures that the best interests of the country are protected

49Lim v. Executive Secretary, supra note 7, 21.50EDCA, Article I(1)(a).


18/32


because activities are approved by the Philippine Government on a percase basis within the framework of the MDT, VFA and EDCA.

57.

Article I of the EDCA provides that its purposes are tosupport the Parties shared goal of improving interoperability of theParties forces, and for the Armed Forces of the Philippines (AFP), [toaddress its] short-term capabilities gaps, promoting long-termmodernization, and helping maintain and develop additional maritimesecurity, maritime domain awareness, and humanitarian assistance anddisaster relief capabilities. The Honorable Court in Limruled that theseactivities are already covered by the VFA. Under Lim, maritime security,maritime domain awareness, and humanitarian assistance and disaster

relief capabilities are activities that are authorized to be undertaken inthe Philippines under the VFA.

58. Article II of the EDCA reiterates the definition of UnitedStates personnel in the VFA which means United States military andcivilian personnel temporarily in the Philippines in connection withactivities approved by the Philippines.

59. Article III of the EDCA provides for the Agreed Locations

where the Philippines authorizes US forces and contractors to conductthe following activities:51 training; transit; support and relatedactivities; refueling of aircraft; bunkering of vessels; temporarymaintenance of vehicles, vessels and aircraft; temporary accommodationof personnel; communications; prepositioning of equipment, supplies andmateriel; deploying forces and materiel; and such other activities as theParties may agree.52

60. Article IV of the EDCA authorizes the prepositioning and

storing of defense equipment, supplies and materiel. Under Article IV inrelation to Article III of the EDCA, the prepositioning of equipment,supplies and materiel is an activity to be approved by the PhilippineGovernment through bilateral security mechanisms, such as the MDBand SEB.53 Article IV of the EDCA further states that [t]he Partiesshare a recognition of the benefits that such prepositioning could have forhumanitarian assistance and disaster relief. The Parties also recognize the

value of such prepositioning to the enhancement of their individual andcollective defense capabilities. This again shows that the EDCAreiterates the MDT, as implemented by the VFA.

51Emphasis supplied.52Emphasis supplied.53EDCA, Article IV.


19/32


C. The VFA is the Standing Authority for Activities Approved Bythe Philippine Government Relating to Security Interests of thePhilippines and the United States.

61.

The Honorable Court ruled in LimandNicolasthat the VFAis an implementing agreement of the MDT. As such, the VFA is not onlyintended for the entry of US troops in Philippine territory, but is anagreement with respect to activities regarding troops and facilities

within the Philippines. In other words, the VFA permits activitieswithin Philippine territory, as approved by the Philippine Government,consistent with the broad security undertakings under the MDT.

62.

The contention that the VFA is only an agreement relating totroops is textually negated by Article VII of the VFA54which stipulatesthat United States Government equipment, materials, supplies, and otherpropertyin the Philippinesin connection with activities to which[the VFA] applies55may be imported or exported. Article VII of the

VFA is explicit that the VFA relates to the entry or removal of USfacilities in connection with activities to which [the VFA] applies.

63. Article VIII of the VFA also allows the entry of such facilities

as vehicles, vessels and aircraft in Philippine territory. In line with thenature of the VFA as the undertaking of activities,the entry of aircraftand vessels in the Philippines requires the approval of the PhilippineGovernment.

54VFA, Article VII (Importation and Exportation). 1. United States Government equipment,materials, supplies, and other property imported into or acquired in the Philippines by or onbehalf of the United States armed forces in connection with activities to which thisagreement applies, shall be free of all Philippine duties, taxes and other similar charges. Titleto such property shall remain with the United States, which may remove such property fromthe Philippines at any time, free from export duties, taxes, and other similar charges. Theexemptions provided in this paragraph shall also extend to any duty, tax, or other similarcharges which would otherwise be assessed upon such property after importation into, oracquisition within, the Philippines. Such property may be removed from the Philippines, ordisposed of therein, provided that disposition of such property in the Philippines to personsor entities not entitled to exemption from applicable taxes and duties shall be subject topayment of such taxes, and duties and prior approval of the Philippine Government.

2. Reasonable quantities of personal baggage, personal effects, and other property for thepersonal 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 inthe Philippines. Transfers to persons or entities in the Philippines not entitled to importprivileges may only be made upon prior approval of the appropriate Philippine authoritiesincluding payment by the recipient of applicable duties and taxes imposed in accordancewith the laws of the Philippines. The exportation of such property and of property acquiredin the Philippines by United States personnel shall be free of all Philippine duties, taxes, andother similar charges.55Emphasis supplied.


20/32


64. The primary concept of activities under the VFA serves asthe operative license for allowing troops and facilities. This is evident bothin the text of the VFA and the decision in Lim. Article I of the VFA

defines United States personnel as United States military and civilianpersonnel temporarily in the Philippines in connection with activitiesapproved by the Philippine Government. Article II of the VFA statesthat [i]t is the duty of United States personnel to respect the laws of theRepublic of the Philippines and to abstain from any activity inconsistent

with the spirit of this agreement

65. Three decisions of the Honorable Court serve to clarify thenature of the VFA: BAYAN, LimandNicolas. While BAYAN andNicolas

dealt with the applicability of the requirement that the VFA must berecognized as a treaty by the US under Article VIII, Section 25 of theConstitution,56 Lim explained the nature of the VFA when it ruled infavor of the validity of the Balikatanexercises of Philippine and US troopsin Basilan and Mindanao.

66. Whereas BAYAN and Nicolas dealt with the proceduralrequirements under Article VIII, Section 25 of the Constitution, Liminvolved the substantive interpretation of the provisions of the VFA,

using the interpretive methods under the Vienna Convention on the Lawof Treaties. The Honorable Court in Lim said that [t]he VFA permitsUnited States personnel to engage, on an impermanent basis, inactivities, the exact meaning of which was left undefined. TheHonorable Court ruled that

After studied reflection, it appeared farfetched that theambiguity surrounding the meaning of the word activitiesarose from accident. In our view, it was deliberately made thatway to give both parties a certain leeway in negotiation. In this

manner, visiting US forces may sojourn in Philippine territory forpurposes other than military. As conceived, the joint exercises mayinclude training on new techniques of patrol and surveillance to protectthe nations marine resources, sea search-and-rescue operations toassist vessels in distress, disaster relief operations, civic action projectssuch as the building of school houses, medical and humanitarianmissions, and the like.57

56After the expiration in 1991 of the Agreement between the Republic of the Philippines andthe United States of America concerning military bases, foreign military bases, troops, orfacilities shall not be allowed in the Philippines except under a treaty duly concurred in bythe Senate and, when the Congress so requires, ratified by a majority of the votes cast by thepeople in a national referendum held for that purpose, and recognized as a treaty by theother contracting State.57Emphasis supplied. Supranote 7 at 755.


21/32


67. Lim ruled that the term activities under the VFA is broadenough to include patrol and surveillance to protect the nations marineresources, sea search-and-rescue operations and disaster relief

operations activities that are covered by the EDCA. These activitiesnecessarily involve the entry and operation of US facilities withinPhilippine territory.

68. The activities under the VFA are meant to strengtheninternational and regional security in the Pacific area and to promote thecommon security interests between the US and the Philippines. Thus,the activities under the VFA relate to individual and common securityinterests of both countries. This is because the VFA, by its own terms,

implements the MDT which is intended, among others, to maintain anddevelop [the Parties] individual and collective capacity to resist armedattack.

69. The MDT is expressed in general terms and cannot beenforced by its own terms. By necessity, the language of both the MDTand the VFA (and to some extent the EDCA) must be couched in generalterms considering that these are security agreements. It would be theheight of naivet to constitutionally require that any of these agreements

be articulated at the level of granular details. Both the generality of thelanguage and the consent mechanisms in the documents are themselvessecurity features that serve to protect our national interests.

70. At the same time, the MDT must necessarily be implementedby subsequent agreements between the Philippines and the US such as the

VFA and the EDCA. Limsaid that [i]t is the VFA which gives continuedrelevance to the MDT despite the passage of years. Nicolasruled that the

VFA is an implementing agreement of the RP-US Mutual Defense

Treaty, [and] it was not necessary to submit the VFA to the US Senate foradvice and consent

D. The EDCA, as an Implementing Agreement, Does Not RequireSenate Concurrence.

71. The EDCA does not require Senate concurrence underArticle XVIII, Section 25 of the Constitution because it is animplementing agreement of the MDT and the VFA. The MDT and the

VFA are valid and subsisting international agreements, and already allowthe entry of US troops and facilities in the Philippines under ArticleXVIII, Section 25 of the Constitution. The provisions of the EDCA areentirely covered by these prior agreements. A Senate concurrence to theEDCA is a legal superfluity.


22/32


72. In Commissioner of Customs v. Eastern Sea Trading,58 theHonorable Court adopted the following distinction between a treaty,

which requires Senate concurrence, and an executive agreement, which

does not:

Treaties are formal documents which require ratification withthe approval of two thirds of the Senate. Executive agreements becomebinding through executive action without the need of a vote by theSenate or by Congress.

International agreements involving political issues or changes ofnational policy and those involving international arrangements of apermanent character usually take the form of treaties. But internationalagreements embodying adjustments of detailcarrying out well-establishednational policies and traditions and those involving arrangements of amore or less temporary nature usually take the form of executiveagreements.59

73. The EDCA is an implementing agreement of the MDT andthe VFA because it involves adjustments of detail to carry-out thesecurity policies in the MDT and the VFA, which are necessarily couchedin general terms. The EDCA further articulates the authorized activities to

carry out the objectives of the MDT and the VFAthe use of AgreedLocations, prepositioning of materiel, and construction of improvements.What the EDCA does is to enhance the existing contractual securityapparatus between the Philippines and the US, set up through the MDTand the VFA. It is the duty of the Honorable Court to allow this securityapparatus enough breathing space to respond to perceived, anticipated,and actual exigencies.

74.

The EDCA is wholly consistent with the MDT and the VFAbecause it simply reiterates the material provisions of the MDT and theVFA with accompanying adjustments in detail such as the prepositioningof equipment (Article IV), disaster relief operations (Article I and IV),utilities and communications in the agreed locations (Article VII), andsafeguards for the environment and human health (Article IX).

58G.R. No. L-14279, 31 October 1961.59Italics in the original. Id.at 356.


23/32


III.ASSORTED ISSUES RAISED BY THE PETITIONS

A. The MDT Cannot Be Collaterally Attacked; Its Validity HasAlready Been Judicially Recognized in Limand Nicolas.

75. The Saguisag Petition argues that the EDCA cannotimplement the MDT on the ground that it cannot further a treaty that isboth unconstitutional and contrary to the intents and purposes of the UNCharter.60 This argument is based on Article II, Section 2 of theConstitution which provides that [t]he Philippines renounces war as an

instrument of national policy and Article 2(4) of the UN Charter whichprovides that [a]ll Members shall refrain in their international relationsfrom the threat or use of force against the territorial integrity or politicalindependence of any state, or in any other manner inconsistent with thePurposes of the United Nations.

76. It must be noted that the prayer in the SaguisagPetition doesnot seek to annul or set aside the MDT. The relief prayed for is limited todeclaring the EDCA unconstitutional and prohibiting its implementation.

Petitioners argument therefore constitutes a collateral attack on theMDT. An attack is indirect or collateral when, in an action to obtain adifferent relief, an attack on another proceeding is made as an incidentthereof.61In contrast, an attack is direct when the object of an action is toannul or set aside such proceeding or enjoin its enforcement.62

77. The validity of the MDT has been consistently recognized bythe Honorable Court in BAYAN, LimandNicolas. In Lim, the HonorableCourt declared that the MDT is a valid source of international

obligation and is consistent with Article II, Section 2 of the Constitutionwhich renounceswar as an instrument of national policy

In our considered opinion, neither the MDT nor the VFA allowforeign troops to engage in an offensive war on Philippine territory.

We bear in mind the salutary proscription stated in the Charter of theUnited Nations, to wit:

Article 2

The Organization and its Members, in pursuit of thePurposes stated in Article 1, shall act in accordance withthe following Principles.

xxx xxx xxx

60G.R. No. 212426, p.23.61SeeFiraza v. Spouses Claudio, G.R. No. 165838, 03 April 2013.62Id.


24/32


4. All Members shall refrain in their internationalrelations from the threat or use of force against theterritorial integrity or political independence of any state,or in any other manner inconsistent with the Purposes of

the United Nations.xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and theVisiting Forces Agreement, as in all other treaties and internationalagreements to which the Philippines is a party, must be read in thecontext of the 1987 Constitution. In particular, the Mutual Defense

Treaty was concluded way before the present Charter, though itnevertheless remains in effect as a valid source of internationalobligation.The present Constitution contains key provisions useful in

determining the extent to which foreign military troops are allowed inPhilippine territory. Thus, in the Declaration of Principles and StatePolicies, it is provided that:

xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrumentof national policy, adopts the generally acceptedprinciples of international law as part of the law of theland and adheres to the policy of peace, equality, justice,freedom, cooperation, and amity with all nations.

xxx xxx xxx

SEC. 7. The State shall pursue an independent foreignpolicy. In its relations with other states the paramountconsideration shall be national sovereignty, territorialintegrity, national interest, and the right to self-determination.

SEC. 8. The Philippines, consistent with the national

interest, adopts and pursues a policy of freedom fromnuclear weapons in the country.63

78. A collateral attack on a presumably valid law is not allowed.64There is a legal presumption of validity of these laws and rules. Unless alaw or rule is annulled in a direct proceeding, the legal presumption of its

validity stands.65 In Arigo, the Honorable Court ruled that petitioners(some of whom are also petitioners in this case) cannot collaterallychallenge the VFA through a petition for a Writ of Kalikasan.

79.

In any case, it is simply false to argue that the MDT adoptswar as instrument of national policy. The MDT is meant for the

63Emphasis supplied. Supranote 7.64Dasmarias Water District v. Monterey Foods Corporation, G.R. No. 175550, 17 September 2008.65Id.


25/32


Philippines and the US to maintain and develop their individual andcollective capacity to resist armed attack. Thus, the purpose of the MDTis the development of defense capabilities of both countries consistent

with the UN Charter and the constitutional duty to protect the integrityand security of the State. Article 51 of the UN Charter recognizes theinherent right of individual and collective self-defense of states. TheMDT provides for the self-defense of states or their capacity to resistarmed attack. Contrary to the Saguisag Petition, there is nothing in theMDT which authorizes the Philippines or the US to initiate the use offorce or wage war with other countries.

B. The EDCA Does Not Authorize the Entry of Nuclear WeaponsInto the Philippines.

80. The EDCA does not violate the policy of freedom fromnuclear weapons under Article II, Section 8 of the Constitution. ArticleIV, paragraph 6 of the EDCA provides that [t]he prepositioned materielshall not include nuclear weapons. All prepositioning must be carried outthrough bilateral security mechanisms such as the MDB and the SEB.

Through the MDB and SEB, the Philippine Government will regulate the

equipment, supplies and facilities that may be allowed entry into thePhilippines. Article IV, paragraph 1 of the EDCA provides

The Philippines hereby authorizes United States forces, throughbilateral security mechanisms, such as the MDB and SEB, topreposition and store defense equipment, supplies and materiel(prepositioned materiel), including, but not limited to, humanitarianassistance and disaster relief equipment, supplies and materiel, at

Agreed Locations. United States forces shall notify the AFP in advanceregarding the quantities and delivery schedules of defense equipment,supplies and materiel that United States forces intend to preposition in

Agreed Locations, as well as who will make such deliveries.

81. The argument that Article IV, paragraph 1 of the EDCA onlyapplies to prepositioned materiel and would not bar the entry of US

vessels and aircraft carrying nuclear weapons is specious and contradictedby the express provisions of the EDCA. The EDCA is premised on fullrespect for the Philippine Constitution and Philippine laws66 and theparties obligations under international conventions against chemical andbiological weapons.

82. Activities involving the entry of vessels and aircraft willrequire the approval of the Philippine Government. Such approval is

66EDCA, Preamble.


26/32


circumscribed by a policy of freedom from nuclear weapons underArticle II, Section 8 of the Constitution.

83.

Article IX, paragraph 1 of the EDCA expressly provides that[t]he Parties recognize and acknowledge the importance of protection ofthe environment and human health and safety in the context of activitiescovered by this Agreement and agree to implement this Agreement in amanner consistent with the protection of the natural environment andhuman health and safetyArticle IX, paragraph 2 also states that [t]heUnited States confirms its intent to respect relevant Philippineenvironmental, health, and safety laws, regulations, and standards in theexecution of its policies.

C. The EDCA Does Not Deprive Philippine Courts of Jurisdiction.

84. The BAYANPetition argues that the EDCA, in providing adispute settlement mechanism in Article XI, deprives the Supreme Courtof its jurisdiction under the Constitution.67 Article XI of the EDCAprovides:

RESOLUTION OF DISPUTES

The Parties agree to resolve any dispute arising under thisAgreement exclusively through consultation between the Parties.Disputes and other matters subject to consultation under this

Agreement shall not be referred to any national or international court,tribunal, or other similar body, or to any third party for settlement,unless otherwise agreed by the parties.

85. Under Article VIII, Section 5 of the Constitution, theSupreme Court has jurisdiction to determine the constitutionality of aninternational agreement under Philippine law. However, the HonorableCourt does not have the jurisdiction to settle disputes between states.

Any dispute settlement mechanism between states is subject to theirconsent under international law.

D. The EDCA Does Not Violate Constitutional Policy and ExistingLaws.

86.

Petitioners maintain that the provisions of the EDCA arecontrary to certain policy pronouncements in the Constitution. Petitionersalso maintain that the EDCA violates the Labor Code, the National

67BAYAN Petition, p. 40-43.


27/32


Internal Revenue Code, the Local Government Code, and the NationalBuilding Code, among others.

87.

Two reasons should sweep aside petitioners assortedobjections to the EDCA

88. First, a sovereign nation cannot be bound by the laws ofanother. The Republic of the Philippines, as a sovereign state, may applyits laws to its subjects and within its territory. It is inherent in statehood,and a functional requirement in international relations, that a states locallaws cannot bind another sovereign state. This immunity from jurisdictionapplies to contingents of US Armed Forces allowed to enter the country.

The rule in international law is that a foreign armed forcesallowed to enter ones territory is immune from local jurisdiction,except to the extent agreed upon. The Status of Forces Agreementsinvolving foreign military units around the world vary in terms andconditions, according to the situation of the parties involved, andreflect their bargaining power. But the principle remains, i.e., thereceiving State can exercise jurisdiction over the forces of the sendingState only to the extent agreed upon by the parties.68

89. The Supreme Court in Bayan recognized that states mayconcede aspects of sovereignty through an agreement:

By their nature, treaties and international agreements actuallyhave a limiting effect on the otherwise encompassing and absolutenature of sovereignty. By their voluntary act, nations may decide tosurrender or waive some aspects of their state power or agree to limitthe exercise of their otherwise exclusive and absolute jurisdiction. Theusual underlying consideration in this partial surrender may be thegreater benefits derived from a pact or a reciprocal undertaking of onecontracting party to grant the same privileges or immunities to theother. On the rationale that the Philippines has adopted the generallyaccepted principles of international law as part of the law of the land, aportion of sovereignty may be waived without violating theConstitution. Such waiver does not amount to an unconstitutionaldiminution or deprivation of jurisdiction of Philippine courts.69

90. The EDCA simply restates what is already a given. Under theMDT, as implemented by the VFA, US troops and facilities may enterPhilippine territory. Without the consent of the US, petitioners cannot

insist on the application of the countrys taxes, labor laws and buildingcodes.

68Nicolas v. Romulo, citing DIETER FLECK,ED.,THE HANDBOOK OF THE LAW OFVISITINGFORCES(2001).69BAYAN v. Romulo, supra note 17.


28/32


91. Second, the policy provisions in the Constitution relied on bypetitioners, such as Sections 9,7010,711572and 1873of Article II are notself-executing. The Honorable Court has already ruled in Taada v.

Angara74

that the principles in Article II of the Constitution are notintended to be self-executing principles ready for enforcement throughthe courts. They are used by the judiciary as aids or as guides in theexercise of its power of judicial review, and by the legislature in itsenactment of laws.75They cannot give rise to a cause of action due tobasic considerations of due process and the lack of judicial authority to

wade into the uncharted ocean of social and economic policy making.76These provisions require implementing legislation, and petitioners cannotuse the broad declarations of the Constitution as basis for a cause of

action.

PRAYER

WHEREFORE, it is respectfully prayed that:

1) The application for a Temporary Restraining Order and/or Writ

of Preliminary Injunction be DENIED; and

2) The petitions be DISMISSED for LACK OF MERIT.

Respondents pray for other just and equitable reliefs under thepremises.

Manila, 10 October 2014.

70The State shall promote a just and dynamic social order that will ensure the prosperity andindependence of the nation and free the people from poverty through policies that provideadequate social services, promote full employment, a rising standard of living, and animproved quality of life for all.71The State shall promote social justice in all phases of national development.72The State shall protect and promote the right to health of the people and instill healthconsciousness among them.73The State affirms labor as a primary social economic force. It shall protect the rights ofworkers and promote their welfare.74G.R. No. 118295, 02 May 1997.75See alsoKilosbayan v. Morato, G.R. No. 118910, 17 July 1995; Basco v. PAGCOR, G.R. No.91649, 14 May 1991.76Taada v. Angara, G.R. No. 118295, 02 May 1997.


29/32


OFFICE OF THE SOLICITOR GENERAL134 Amorsolo St., Legaspi Village

1229 Makati City

Tel. No.: 8186301 to 09 (Trunkline)Fax No.: 8176037Website:www.osg.gov.phEmail:[email protected]

FLORIN T. HILBAY

Acting Solicitor GeneralRoll No. 44957IBP Lifetime No. 08505

MCLE Exemption No. IV-001068, 5-14-13

EMERSON S. BAEZ

Associate SolicitorRoll No. 56723IBP No. 953502, 01-08-14

MCLE Compliance No. IV-0010542, 12-20-12

MAXIMO PAULINO T. SISON III

Roll No. 59301IBP Lifetime No. 012977MCLE Compliance No. N/A

MARIA GRACIELA D. BASEAssociate SolicitorRoll No. 61899

IBP No. 954310, 1-9-14MCLE Compliance No. N/A
http://www.osg.gov.ph/http://www.osg.gov.ph/http://www.osg.gov.ph/mailto:[email protected]:[email protected]:[email protected]:[email protected]://www.osg.gov.ph/


30/32


JOHN DALE A. BALLINAN

Associate SolicitorRoll No. 56727IBP Lifetime No. 08853

MCLE Compliance No. IV-0009117

KAREN M. MALABANAN

Associate SolicitorRoll No. 56809IBP Lifetime No. 08851

MCLE Compliance No. IV-0009116

MELBOURNE D. PANA


MCLE Compliance No. N/A

RAMON ANTONIO D. PANDAN


MCLE Compliance No. N/A

LIWAY CZARINA S. RUIZOAssociate SolicitorRoll No. 63351

IBP No. 967967, 03-31-14MCLE Compliance No. N/A


31/32

Copy Furnished:

HARRY L. ROQUEROMMEL R. BAGARESETHEL C. AVISADO

Roque & Butuyan Law OfficesCounsel for Petitioners in G.R. No. 2124261904 Antel Corporate Center121 Valero St., Salcedo VillageMakati City

RACHEL F. PASTORESAMYLYN B. SATOFRANCIS ANTHONY P. PRINCIPESANDRA JILL S. SANTOSCARLOS A. MONTEMAYOR, JR.Public Interest law CenterCounsel for Petitioners in G.R. No. 2124444/F Kajia Bldg., 7836 Makati Avenue

MARIA KRISTINA C. CONTIMANEEKA ASISTOL SARZANational Union of Peoples LawyersCounsel for Petitioners in G.R. No. 2124443/F Erythrina BuildingNo. 1 Matatag cor. Maaralin Sts.Central District, Quezon City

REMEGIO D. SALADERO, JR.NOEL V. NERIVICENTE JAIME M. TOPACIOPro-Labor Legal Assistance CenterCounsel for Petitioners-in-InterventionNo. 33-B E. Rodriguez Sr. Avenue, QuezonCity

RENE A.V. SAGUISAG, SR.Counsel for Petitioner-in-Intervention4045 Bigasan St., Palanan

1235 Makati

Executive Secretary PAQUITO N.OCHOA, JR.Office of the President, Malacaan

Manila

Secretary VOLTAIRE GAZMINDepartment of National DefenseDND Bldg., Segundo AvenueCamp General Emilio Aguinaldo, QuezonCity

Secretary ALBERT DEL ROSARIODepartment of Foreign AffairsDFA Bldg., Roxas Blvd., Pasay City

Secretary FLORENCIO ABADDepartment of Budget and ManagementJ.P. Laurel Sr. St., Malacaan Palace, Manila

General EMMANUEL T. BAUTISTAOffice of the Chief of Staff, Armed Forcesof the PhilippinesDND Bldg., Segundo AvenueCamp General Emilio Aguinaldo, QuezonCity

Justice Undersecretary FRANCISCOBARAAN IIIDepartment of JusticePadre Faura St., Legaspi VillageMakati City

PIO LORENZO BATINODefense UndersecretaryRAYMOND JOSE QUILOPDND Asst. Secretary for Strategic

AssessmentsDND Bldg., Segundo AvenueCamp General Emilio Aguinaldo, QuezonCity

Ambassador LOURDESYPARRAGUIRREDFA Bldg., 2330 Roxas Blvd., Pasay City

Ambassador J. EDUARDO MALAYADFA Bldg., 2330 Roxas Blvd., Pasay City


32/32

CONSOLIDATED COMMENTPage 32 of 32

EXPLANATION(Pursuant to Rule 13, Section 11 of the

1997 Rules of Civil Procedure)

This Consolidated Comment is being served by registered mail due to lack of sufficientpersonnel in the Office of the Solicitor General to effect personal service.

RAMON ANTONIO PANDANAssociate Solicitor

edca comment

Documents