G.R. No.

231658 Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on May
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A. 25, 2017, a written Report on the factual basis of Proclamation No. 216.
BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners
vs. The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless violence which
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY only escalated and worsened with the passing of time.
OF THE DEPARTMENT OF NATIONAL DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN.
EDUARDO ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent years,
IMPLEMENTOR, Respondents we have witnessed the perpetration of numerous acts of violence challenging the authority of the duly constituted
DECISION authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage, and the bombings in
Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have figured prominently in all
DEL CASTILLO, J.: these, namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued
Proclamation No. 216 declaring a state of martial law and suspending the privilege of the writ of habeas The President went on to explain that on May 23, 2017, a government operation to capture the high-ranking
corpus in the whole of Mindanao. officers of the Abu Sayyaf Group (ASG) and the Maute Group was conducted. These groups, which have been
unleashing havoc in Mindanao, however, confronted the government operation by intensifying their efforts at
The full text of Proclamation No. 216 reads as follows: sowing violence aimed not only against the government authorities and its facilities but likewise against civilians
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national and their properties. As narrated in the President's Report:
emergency on account of lawless violence in Mindanao;
On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG, and Maute
WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance which
the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege escalated into open hostility against the government. Through these groups' armed siege and acts of violence
of the writ of habeas corpus or place the Philippines or any part thereof under martial law x x x'; directed towards civilians and government authorities, institutions and establishments, they were able to take
control of major social, economic, and political foundations of Marawi City which led to its paralysis. This sudden
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that 'the crime of taking of control was intended to lay the groundwork for the eventual establishment of a DAESH wilayat or
rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of province in Mindanao.
removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or
any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two hundred
Legislature, wholly or partially, of any of their powers or prerogatives'; sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The group
chiefly operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign and local
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals
by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, being espoused by the DAESH, as evidenced by, among others, its publication of a video footage declaring its
killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and
arrested comrades and other detainees; Syria) in particular, as well as illegal drug money, provide financial and logistical support to the Maute Group.

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an Islamic
del Sur, established several checkpoints within the City, burned down certain government and private facilities State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers
and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and prerogatives.2
and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine
Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi City
laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and which impelled him to declare a state of martial law and suspend the privilege of writ of habeas corpus, to wit:
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and • At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack on
cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao. various facilities - government and privately owned - in the City of Marawi.
• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the Bureau of Jail
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the Management and Penology (BJMP).
powers vested in me by the Constitution and by law, do hereby proclaim as follows: • The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty personnel.
BJMP personnel were disarmed, tied, and/or locked inside the cells.
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not • The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and private
exceeding sixty days, effective as of the date hereof. vehicles).
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the • By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were heard and
duration of the state of martial law. felt everywhere. By evening, the power outage had spread citywide. (As of 24 May 2017, Marawi City's electric
DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen. supply was still cut off, plunging the city into total black-out.)
• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the Marawi Police mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local
Station. A patrol car of the Police Station was also taken. govemments.4
• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail. The
Maute Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail. According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, brought about
• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate. undue constraints and difficulties to the military and government personnel, particularly in the performance of
• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, their duties and functions, and untold hardships to the civilians, viz.:
fell under the control of these groups. They threatened to bomb the bridges to pre-empt military reinforcement. Law enforcement and other government agencies now face pronounced difficulty sending their reports to the
• As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi City, including Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from
Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot, performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi
Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the
Abubakar. government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered,
• These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi City preventing the government from restoring peace and order in the area. Movement by both civilians and
junction. government personnel to and from the city is likewise hindered.
• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria Auxiliadora,
the nun's quarters in the church, and the Shia Masjid Moncado Colony. Hostages were taken from the church. The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based
• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in
groups. Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise
• Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the compromised the security of the entire Island of Mindanao.5
Marawi Central Elementary Pilot School.
• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in
locations. As of 0600H of 24May 2017, members of the Maute Group were seen guarding the entry gates of Mindanao, and the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions
Amai Pakpak Hospital. They held hostage the employees of the Hospital and took over the PhilHealth office once Marawi City falls under the control of the lawless groups.
located thereat.
• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they later set The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it
ablaze. provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi
• Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one of its City as escape routes, supply lines, and backdoor passages.
armored vehicles.
• Latest information indicates that about seventy-five percent (75%) of Marawi City has been infiltrated by lawless Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless
armed groups composed of members of the Maute Group and the ASG. As of the time of this Report, eleven (11) armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the
members of the Armed Forces and the Philippine National Police have been killed in action, while thirty-five (35) entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of
others have been seriously wounded. the Filipino people and preserve our national integrity.6
• There are reports that these lawless armed groups are searching for Christian communities in Marawi City to
execute Christians. They are also preventing Maranaos from leaving their homes and forcing young male The President ended his Report in this wise:
Muslims to join their groups. While the government is presently conducting legitimate operations to address the on-going rebellion, if not the
• Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action of seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of
lawless armed groups in Marawi City, seizing public and private facilities, perpetrating killings of government the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely
personnel, and committing armed uprising against and open defiance of the government.3 quelled.7

The unfolding of these events, as well as the classified reports he received, led the President to conclude that - In addition to the Report, representatives from the Executive Department, the military and police authorities
These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power conducted briefings with the Senate and the House of Representatives relative to the declaration of martial law.
in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao. After the submission of the Report and the briefings, the Senate issued P.S. Resolution No. 388 8 expressing full
support to the martial law proclamation and finding Proclamation No. 216 "to be satisfactory, constitutional and in
The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their accordance with the law". In the same Resolution, the Senate declared that it found "no compelling reason to
ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the revoke the same". The Senate thus resolved as follows:
decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the Senate, that the
clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its Senate finds the issuance of Proclamation No. 216 to be satisfactory, constitutional and in accordance with the
allegiance to the Government. law. The Senate hereby supports fully Proclamation No. 216 and finds no compelling reason to revoke the
sarne.9
There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority,
and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an The Senate's counterpart in the lower house shared the same sentiments. The House of Representatives
attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his likewise issued House Resolution No. 1050 10 "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS NO REASON TO REVOKE
PROCLAMATION NO. 216, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis considering
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'. that the President acted alone and did not consult the military establishment or any ranking official 27 before
making the proclamation.
The Petitions
A) G.R. No. 231658 (Lagman Petition) Finally, the Lagman Petition claims that the President's proclamation of martial law lacks sufficient factual basis
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano, Emmanuel A. owing to the fact that during the presentation before the Committee of the Whole of the House of
Billones, and Teddy Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph of Section 18 of Article VII Representatives, it was shown that the military was even successful in pre-empting the ASG and the Maute
of the 1987 Constitution. Group's plan to take over Marawi City and other parts of Mindanao; there was absence of any hostile plan by the
Moro Islamic Liberation Front; and the number of foreign fighters allied with ISIS was "undetermined" 28 which
First, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because there indicates that there are only a meager number of foreign fighters who can lend support to the Maute Group.29
is no rebellion or invasion in Marawi City or in any part of Mindanao. It argues that acts of terrorism in Mindanao
do not constitute rebellion12 since there is no proof that its purpose is to remove Mindanao or any part thereof Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its specific and
from allegiance to the Philippines, its laws, or its territory. 13 It labels the flying of ISIS flag by the Maute Group in special jurisdiction to review the sufficiency of the factual basis of Proclamation No. 216"; and (2) render "a
Marawi City and other outlying areas as mere propaganda1 14 and not an open attempt to remove such areas Decision voiding and nullifying Proclamation No. 216" for lack of sufficient factual basis.30
from the allegiance to the Philippine Government and deprive the Chief Executive of the assertion and exercise
of his powers and prerogatives therein. It contends that the Maute Group is a mere private army, citing as basis In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the Lagman Petition and
the alleged interview of Vera Files with Joseph Franco wherein the latter allegedly mentioned that the Maute set the case for oral argument on June 13, 14, and 15, 2017.
Group is more of a "clan's private militia latching into the IS brand theatrically to inflate perceived
capability".15 The Lagman Petition insists that during the briefing, representatives of the military and defense On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were filed and
authorities did not categorically admit nor deny the presence of an ISIS threat in the country but that they merely eventually consolidated with G.R. No. 231658.32
gave an evasive answer16 that "there is ISIS in the Philippines". 17 The Lagman Petition also avers that Lt. Gen.
Salvador Mison, Jr. himself admitted that the current armed conflict in Marawi City was precipitated or initiated by B) G.R. No. 231771 (Cullamat Petition)
the government in its bid to capture Hapilon. 18Based on said statement, it concludes that the objective of the The Cullamat Petition, "anchored on Section 18, Article VII" 33 of the Constitution, likewise seeks the nullification
Maute Group's armed resistance was merely to shield Hapilon and the Maute brothers from the government of Proclamation No. 216 for being unconstitutional because it lacks sufficient factual basis that there is rebellion
forces, and not to lay siege on Marawi City and remove its allegiance to the Philippine Republic. 19 It then posits in Mindanao and that public safety warrants its declaration. 34
that if at all, there is only a threat of rebellion in Marawi City which is akin to "imminent danger" of rebellion, which
is no longer a valid ground for the declaration of martial law.20 In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to events happening
in Marawi City only an not in the entire region of Mindanao. It concludes that Proclamation No 216 "failed to show
Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because any factual basis for the imposition of martial law in the entire Mindanao,"35 "failed to allege any act of
the President's Report containef "false, inaccurate, contrived and hyperbolic accounts".21 rebellion outside Marawi City, much less x x x allege that public safety requires the imposition o martial law in the
whole of Mindanao".36
It labels as false the claim in the President's Report that the Maute Group attacked Amai Pakpak Medical Center.
Citing online reports on the interview of Dr. Amer Saber (Dr. Saber), the hospital's Chief, the Lagman Petition The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel groups to sow terror
insists that the Maute Group merely brought an injured member to the hospital for treatment but did not overrun and cause death and damage to property"37 does not rise to the level of rebellion sufficient to declare martial law
the hospital or harass the hospital personnel. 22 The Lagman Petition also refutes the claim in the President's in the whole of Mindanao.38 It also posits that there is no lawless violence in other parts of Mindanao similar to
Report that a branch of the Landbank of the Philippines was ransacked and its armored vehicle commandeered. that in Marawi City.39
It alleges that the bank employees themselves clarified that the bank was not ransacked while the armored
vehicle was owned by a third party and was empty at the time it was commandeered. 23 It also labels as false the Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the last Whereas
report on the burning of the Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot Clause of Proclamation No. 216 for being vague as it failed to identify these rebel groups and specify the acts of
School. It avers that the Senator Ninoy Aquino College Foundation is intact as of May 24, 2017 and that rebellion that they were supposedly waging.40
according to Asst. Superintendent Ana Alonto, the Marawi Central Elementary Pilot School was not burned by the
terrorists.24 Lastly, it points out as false the report on the beheading of the police chief of Malabang, Lanao del In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the Report of the
Sur, and the occupation of the Marawi City Hall and part of the Mindanao State University.25 President to Congress, particularly the attack at the Amai Pakpak Hospital, the ambush and burning of the
Marawi Police Station, the killing of five teachers of Dansalan College Foundation, and the attacks on various
Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis since the government facilities.41
President's Report mistakenly included the attack on the military outpost in Butig, Lanao del Sur in February
2016, the mass jail break in Marawi City in August 2016, the Zamboanga siege, the Davao market bombing, the In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional or in the
Mamasapano carnage and other bombing incidents in Cotabato, Sultan Kudarat, and Basilan, as additional alternative, should the Court find justification for the declaration of martial law and suspension of the privilege of
factual bases for the proclamation of martial law. It contends that these events either took place long before the the writ of habeas corpus in Marawi City, to declare the same as unconstitutional insofar as its inclusion of the
conflict in Marawi City began, had long been resolved, or with the culprits having already been arrested.26 other parts of Mindanao.42

C) G.R. No. 231774 (Mohamad Petition)

The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual Basis of [the] VII may be availed of using the vehicle, mode or remedy of a certiorari petition, either under Section 1 or 5, of
Declaration of Martial Law and [the] Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels itself as Article VIII.61Corollarily, the OSG maintains that the review power is not mandatory, but discretionary only, on the
"a special proceeding"44 or an "appropriate proceeding filed by any citizen" 45 authorized under Section 18, Article part of the Court. 62 The Court has the discretion not to give due course to the petition.63
VII of the Constitution.
Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of Proclamation No.
The Mohamad Petition posits that martial law is a measure of last resort 46 and should be invoked by the 216 should be reviewed by the Court "under the lens of grave abuse of discretion" 64 and not the yardstick of
President only after exhaustion of less severe remedies.47 It contends that the extraordinary powers of the correctness of the facts.65 Arbitrariness, not correctness, should be the standard in reviewing the sufficiency of
President should be dispensed sequentially, i.e., first, the power to call out the armed forces; second, the power factual basis.
to suspend the privilege of the writ of habeas corpus; and finally, the power to declare martial law.48 It maintains
that the President has no discretion to choose which extraordinary power to use; moreover, his choice must be The OSG maintains that the burden lies not with the respondents but with the petitioners to prove that
dictated only by, and commensurate to, the exigencies of the situation.49 Proclamation No. 216 is bereft of factual basis.1âwphi1 It thus takes issue with petitioners' attempt to shift the
burden of proof when they asked the Court "to compel [the] respondents to present proof on the factual
According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require the imposition of basis"66 of Proclamation No. 216. For the OSG, "he who alleges must prove"67 and that governmental actions are
martial law.50 It asserts that the Marawi incidents "do not equate to the existence of a public necessity brought presumed to be valid and constitutional.68
about by an actual rebellion, which would compel the imposition of martial law or the suspension of the privilege
of the writ of habeas corpus".51 It proposes that "[m]artial law can only be justified if the rebellion or invasion has Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the trajectory or point of
reached such gravity that [its] imposition x x x is compelled by the needs of public safety" 52 which, it believes, is view of the President and base on the facts available to him at the time the decision was made. 69 It argues that
not yet present in Mindanao. the sufficiency of the factual basis should be examined not based on the facts discovered after the President had
made his decision to declare martial law because to do so would subject the exercise of the President's
Moreover, it alleges that the statements contained in the President's Report to the Congress, to wit: that the discretion to an impossible standard.70 It reiterates that the President's decision should be guided only by the
Maute Group intended to establish an Islamic State; that they have the capability to deprive the duly constituted information and data available to him at the time he made the determination. 71 The OSG thus asserts that facts
authorities of their powers and prerogatives; and that the Marawi armed hostilities is merely a prelude to a that were established after the declaration of martial law should not be considered in the review of the sufficiency
grander plan of taking over the whole of Mindanao, are conclusions bereft of substantiation.53 of the factual basis of the proclamation of martial law. The OSG suggests that the assessment of after-
proclamation facts lies with the President and Congress for the purpose of determining the propriety of revoking
The Mohamad Petition posits that immediately after the declaration of martial law, and without waiting for a or extending the martial law. The OSG fears that if the Court considers after-proclamation-facts in its review of
congressional action, a suit may already be brought before the Court to assail the sufficiency of the factual basis the sufficiency of the factual basis for the proclamation, it would in effect usurp the powers of the Congress to
of Proclamation No. 216. determine whether martial law should be revoked or extended.72

Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the declaration of martial law It is also the assertion of the OSG that the President could validly rely on intelligence reports coming from the
and the suspension of the privilege of the writ of habeas corpus, the Mohamad Petition insists that the Court may Armed Forces of the Philippines;73 and that he could not be expected to personally determine the veracity of
"look into the wisdom of the [President's] actions, [and] not just the presence of arbitrariness". 54 Further, it asserts thecontents of the reports.74 Also, since the power to impose martial law is vested solely on the President as
that since it is making a negative assertion, then the burden to prove the sufficiency of the factual basis is shifted Commander-in-Chief, the lack of recommendation from the Defense Secretary, or any official for that matter, will
to and lies on the respondents. 55 It thus asks the Court "to compel the [r]espondents to divulge relevant not nullify the said declaration, or affect its validity, or compromise the sufficiency of the factual basis.
information"56in order for it to review the sufficiency of the factual basis.
Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by the President in
In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel respondents to Proclamation No. 216 and in his Report to the Congress by merely citing news reports that supposedly contradict
present proof on the factual basis [of] the declaration of martial law and the suspension of the privilege of the writ the facts asserted therein or by criticizing in piecemeal the happenings in Marawi. For the OSG, the said news
of habeas corpus in Mindanao"57 and declare as unconstitutional Proclamation No. 216 for lack of sufficient articles are "hearsay evidence, twice removed," 75 and thus inadmissible and without probative value, and could
factual basis. not overcome the "legal presumption bestowed on governmental acts".76

The Consolidated Comment Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has sufficient factual
The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the Court. Noting that the basis. It maintains that the burden rests with the petitioners. However, the OSG still endeavors to lay out the
same coincided with the celebration of the 119th anniversary of the independence of this Republic, the Office of factual basis relied upon by the President "if only to remove any doubt as to the constitutionality of Proclamation
the Solicitor General (OSG) felt that "defending the constitutionality of Proclamation No. 216" should serve as "a No. 216".77
rallying call for every Filipino to unite behind one true flag and defend it against all threats from within and outside
our shores".59 The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the Court's Ruling.

The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the authority or power ISSUES
to review the sufficiency of the factual basis of the declaration of martial law. 60 The OSG, however, posits that The issues as contained in the revised Advisory78 are as follows:
although Section 18, Article VII lays the basis for the exercise of such authority or power, the same constitutional 1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the "appropriate
provision failed to specify the vehicle, mode or remedy through which the "appropriate proceeding" mentioned proceeding" covered by Paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the mode of
therein may be resorted to. The OSG suggests that the "appropriate proceeding" referred to in Section 18, Article
review required of this Court when a declaration of martial law or the suspension of the privilege of the writ official capacities as Members of Congress couLd have elicited a vigorous discussion considering the issuance
of habeas corpus is promulgated; by the House of Representatives of House Resolution No. 1050 expressing full support to President Duterte and
2. Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas finding no reason to revoke Proclamation No. 216. By such resolution, the House of Representatives is declaring
corpus: that it finds no reason to review the sufficiency of the factual basis of the martial law declaration, which is in direct
a. is required to be factually correct or only not arbitrary in his appreciation of facts; contrast to the views and arguments being espoused by the petitioners in the Lagman Petition. Considering,
b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense; however, the trend towards relaxation of the rules on legal standing, as well as the transcendental issues
c. is required to take into account only the situation at the time of the proclamation, even if subsequent events involved in the present Petitions, the Court will exercise judicial self-restraint 85 and will not venture into this
prove the situation to have not been accurately reported; matter. After all, "the Court is not entirely without discretion to accept a suit which does not satisfy the
3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation of requirements of a [bona fide] case or of standing. Considerations paramount to [the requirement of legal
martial law or the suspension of the privilege of the writ of habeas corpus is independent of the actual actions standing] could compel assumption of jurisdiction."86 In any case, the Court can take judicial cognizance of the
that have been taken by Congress jointly or separately; fact that petitioners in the Lagman Petition are all citizens of the Philippines since Philippine citizenship is a
4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of the requirement for them to be elected as representatives. We will therefore consider them as suing in their own
privilege of the writ of habeas corpus; behalf as citizens of this country. Besides, respondents did not question petitioners' legal standing.
a. What are the parameters for review?
b. Who has the burden of proof? II. Whether or not the petitions are the
c. What is the threshold of evidence? "appropriate proceeding" covered by paragraph
5. Whether the exercise of the power of judicial review by this Court involves the calibration of graduated powers
granted the President as Commander-in-Chief, namely calling out powers, suspension of the privilege of the writ 3, Section 18, Article VII of the Constitution
of habeas corpus, and declaration of martial law; sufficient to invoke the mode of review required
6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void: by the Court.
a. with its inclusion of "other rebel groups;" or All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article VII
b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region; (Executive Department) of the 1987 Constitution which provides:
7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
Congress are sufficient [bases]: basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and
a. for the existence of actual rebellion; or must promulgate its decision thereon within thirty days from its filing.
b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire
Mindanao 1 region; During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third paragraph of
8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of the Supreme Court different from
requirements of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas those enumerated in Sections 1 and 5 of Article VIII.88
corpus; and The Court agrees.
9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:
a. have the effect of recalling Proclamation No. 55 s. 2016; or a) Jurisdiction must be
b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in Marawi and specifically conferred by the
other parts of the Mindanao region. Constitution or by law.
It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the law. 89 Unless
After the oral argument, the parties submitted their respective memoranda and supplemental memoranda. jurisdiction has been specifically conferred by the Constitution or by some legislative act, no body or tribunal has
the power to act or pass upon a matter brought before it for resolution. It is likewise settled that in the absence of
OUR RULING a clear legislative intent, jurisdiction cannot be implied from the language of the Constitution or a statute. 90 It must
I. Locus standi of petitioners. appear clearly from the law or it will not be held to exist.91
One of the requisites for judicial review is locus standi, i.e., "the constitutional question is brought before [the A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority to the Court
Court] by a party having the requisite 'standing' to challenge it." 79 As a general rule, the challenger must have "a to determine the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of of the writ of habeas corpus.
its enforcement."80 Over the years, there has been a trend towards relaxation of the rule on legal standing, a
prime example of which is found in Section 18 of Article VII which provides that any citizen may file the b) "In an appropriate
appropriate proceeding to assail the sufficiency of the factual basis of the declaration of martial law or the proceeding" does not refer to a
suspension of the privilege of the writ of habeas corpus. "[T]he only requisite for standing to challenge the validity petition for certiorari filed under
of the suspension is that the challenger be a citizen. He need not even be a taxpayer."81 Section 1 or 5 of Article VIII
It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the Republic;" 82 similarly, proceeding" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard
petitioners in the Mohamad Petition all claim to be "Filipino citizens, all women, all of legal [age], and residents of of review in a petition for certiorari is whether the respondent has committed any grave abuse of discretion
Marawi City".83 In the Lagman Petition, however, petitioners therein did not categorically mention that they are amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is not the proper
suing's citizens but merely referred to themselves as duly elected Representatives. 84 That they are suing in their
tool to review the sufficiency of the factual basis of the proclamationor suspension. It must be emphasized that MR. SUAREZ. Thank you, Madam President.
under Section 18, Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively
exercise of emergency powers. Put differently, if this Court applies the standard of review used in a petition unto the President the right to determine the factors which may lead to the declaration of martial law and the
for certiorari, the same would emasculate its constitutional task under Section 18, Article VII. suspension of the writ of habeas corpus. I suppose he has strong and compelling reasons in seeking to delete
this particular, phrase. May we be informed of his good and substantial reasons?
C Purpose/significance of MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding
Section 18, Article VII is to this phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation of
constitutionalize the pre-Marcos actual invasion or rebellion. In these situations, the President has to act quickly. Secondly, this declaration has a
martial law ruling in In the Matter of time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly,
the Petition for Habeas Corpus of Lansang. the right of the judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists, even
The third paragraph of Section 18, Article VII was inserted by the framers of the 1987 Constitution to during those first 60 days.
constitutionalize the pre-Marcos martial law ruling of this Court in In the Matter of the Petition for Habeas Corpus MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive right to the
of Lansang,92 to wit: that the factual basis of the declaration of martial law or the suspension of the privilege of President to determine these factors, especially the existence of an invasion or rebellion and the second factor of
the writ of habeas corpus is not a political question but precisely within the ambit of judicial review. determining whether the public safety requires it or not, may I call the attention of the Gentleman to what
happened to us during the past administration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in his
"In determining the meaning, intent, and purpose of a law or constitutional provision, the history of the times out capacity as President of the Philippines by virtue of the powers vested upon him purportedly under Article VII,
of which it grew and to which it may be rationally supposed to bear some direct relationship, the evils intended to Section 10 (2) of the Constitution, wherein he made this predicate under the "Whereas" provision:
be remedied, and the good to be accomplished are proper subjects of inquiry." 93 Fr. Joaquin G. Bernas, S.J. (Fr.
Bernas), a member of the Constitutional Commission that drafted the 1987 Constitution, explained: Whereas, the rebellion and armed action undertaken by these lawless elements of the Communists and other
armed aggrupations organized to overthrow the Republic of the Philippines by armed violence and force have
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to assumed the magnitude of an actual state of war against our people and the Republic of the Philippines.
impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that period And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by Ferdinand E.
upholding the actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to
jurisprudence. The members of the Constitutional Commission, very much aware of these facts, went about Proclamation No. 1081 dated September 21, 1972 wherein he said, among other things:
reformulating the Commander-in-Chief powers with a view to dismantling what had been constructed during the
authoritarian years. The new formula included revised grounds for the activation of emergency powers, the Whereas, martial law having been declared because of wanton destruction of lives and properties, widespread
manner of activating them, the scope of the powers, and review of presidential action.94 (Emphasis supplied) lawlessness and anarchy and chaos and disorder now prevailing throughout the country, which condition has
To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to decide whether been brought about by groups of men who are actively engaged in a criminal conspiracy to seize political and
there is a state of rebellion requiring the suspension of the privilege of the writ of habeas corpus is lodged with state power in the Philippines in order to take over the government by force and violence, the extent of which has
the President and his decision thereon is final and conclusive upon the courts. This ruling was reversed in the now assumed the proportion of an actual war against our people and the legitimate government ...
1971 case of Lansang where it was held that the factual basis of the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus is not a political question and is within the ambit of And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and declare martial law in
judicial review.96 However, in 1983, or after the declaration of martial law by former President Ferdinand E. our country without justifiable reason. Would the Gentleman still insist on the deletion of the phrase 'and, with the
Marcos, the Court, in Garcia-Padilla v. Enrile,97 abandoned the ruling in Lansang and reverted concurrence of at least a majority of all the members of the Congress'?
to Montenegro. According to the Supreme Court, the constitutional power of the President to suspend the
privilege of the writ of habeas corpus is not subject to judicial inquiry.98 MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an aberration in our
history and national consciousness. But given the possibility that there would be another Marcos, our
Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial law and Constitution now has sufficient safeguards. As I said, it is not really true, as the Gentleman has mentioned, that
suspension of the privilege of the writ of habeas corpus, the framers of the 1987 Constitution in effect there is an exclusive right to determine the factual basis because the paragraph beginning on line 9 precisely
constitutionalized and reverted to the Lansang doctrine. tells us that the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension
d) Purpose of Section 18, thereof and must promulgate its decision on the same within 30 days from its filing.
Article VII is to provide additional
safeguard against possible abuse by I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country.
the President on the exercise of the And here we are trying to balance the public interest in case of invasion or rebellion as against the rights of
extraordinary powers. citizens. And I am saying that there are enough safeguards, unlike in 1972 when Mr. Marcos was able to do all
Section 18, Article VII is meant to provide additional safeguard against possible abuse by the President in the those things mentioned.100
exercise of his power to declare martial law or suspend the privilege of the writ of habeas corpus. Reeling from
the aftermath of the Marcos martial law, the framers of the Constitution deemed it wise to insert the now third To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed the
paragraph of Section 18 of Article VII.99 This is clear from the records of the Constitutional Commission when its President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus within the
members were deliberating on whether the President could proclaim martial law even without the concurrence of ambit of judicial review, it also relaxed the rule on standing by allowing any citizen to question before this Court
Congress. Thus: the sufficiency of the factual basis of such proclamation or suspension. Moreover, the third paragraph of Section
18, Article VII veritably conferred upon any citizen a demandable right to challenge the sufficiency of the factual to review on certiorari the decision, order, or ruling of the Commission on Elections and Commission on Audit can
basis of said proclamation or suspension. It further designated this Court as the reviewing tribunal to examine, in be found in Section 7, Article IX(A).103
an appropriate proceeding, the sufficiency of the factual basis and to render its decision thereon within a limited
period of 30 days from date of filing. h) Unique features of the third
paragraph of Section 18, Article VII
e) Purpose of Section 18, make it sui generis.
Article VII is to curtail the extent of The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be treated
the powers of the President. as sui generis separate and different from those enumerated in Article VIII. Under the third paragraph of Section
The most important objective, however, of Section 18, Article VII is the curtailment of the extent of the powers of 18, Article VII, a petition filed pursuant therewith will follow a different rule on standing as any citizen may file it.
the Commander-in-Chief. This is the primary reason why the provision was not placed in Article VIII or the Said provision of the Constitution also limits the issue to the sufficiency of the factual basis of the exercise by the
Judicial Department but remained under Article VII or the Executive Department. Chief Executive of his emergency powers. The usual period for filing pleadings in Petition for Certiorari is likewise
not applicable under the third paragraph of Section 18, Article VII considering the limited period within which this
During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz Palma Court has to promulgate its decision.
expressed her sentiments on the 1987 Constitution. She said:
A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and defended, the
The executive power is vested in the President of the Philippines elected by the people for a six-year term with manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and of
no reelection for the duration of his/her life. While traditional powers inherent in the office of the President are executing."104In fine, the phrase "in an appropriate proceeding" appearing on the third paragraph of Section 18,
granted, nonetheless for the first time, there are specific provisions which curtail the extent of such powers. Most Article VII refers to any action initiated by a citizen for the purpose of questioning the sufficiency of the factual
significant is the power of the Chief Executive to suspend the privilege of the writ of habeas corpus or proclaim basis of the exercise of the Chief Executive's emergency powers, as in these cases. It could be denominated as
martial law. a complaint, a petition, or a matter to be resolved by the Court.
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of martial law
for more than eight years and the suspension of the privilege of the writ even after the lifting of martial law in III. The power of the Court to review the
1981. The new Constitution now provides that those powers can be exercised only in two cases, invasion or sufficiency of the factual basis of the
rebellion when public safety demands it, only for a period not exceeding 60 days, and reserving to Congress the proclamation of martial law or the suspension of
power to revoke such suspension or proclamation of martial law which congressional action may not be revoked the privilege of the writ of habeas corpus under
by the President. More importantly, the action of the President is made subject to judicial review, thereby again Section 18, Article VII of the 1987 Constitution is
discarding jurisprudence which render[s] the executive action a political question and beyond the jurisdiction of independent of the actions taken by Congress.
the courts to adjudicate.
During the oral argument,105 the OSG urged the Court to give! deference to the actions of the two co-equal
For the first time, there is a provision that the state of martial law does not suspend the operation of the branches of the Government: on' the part of the President as Commander-in-Chief, in resorting to his
Constitution nor abolish civil courts or legislative assemblies, or vest jurisdiction to military tribunals over civilians, extraordinary powers to declare martial law and suspend the privilege of the writ of habeas corpus; and on the
or suspend the privilege of the writ. Please forgive me if, at this point, I state that this constitutional provision part of Congress, in giving its imprimatur to Proclamation No. 216 and not revoking the same.
vindicates the dissenting opinions I have written during my tenure in the Supreme Court in the martial law The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the President as
cases.101 Commander-in-Chief and the review of the said presidential action. In particular, the President's extraordinary
powers of suspending the privilege of the writ of habeas corpus and imposing martial law are subject to the veto
f) To interpret "appropriate powers of the Court and Congress.
proceeding" as filed under Section 1
of Article VIII would be contrary to a) The judicial power to review
the intent of the Constitution. versus the congressional power to
To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the expanded revoke.
jurisdiction of this Court would, therefore, contradict the clear intention of the framers of the Constitution to The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the
place additional safeguards against possible martial law abuse for, invariably, the third paragraph of Section 18, ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation or
Article VII would be subsumed under Section 1 of Article VIII. In other words, the framers of the Constitution suspension, which revocation shall not be set aside by the President.
added the safeguard under the third paragraph of Section 18, Article VII on top of the expanded jurisdiction of
this Court. In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only the
information and data available to the President prior to or at the time of the declaration; it is not allowed td
g) Jurisdiction of the Court is "undertake an independent investigation beyond the pleadings." 106 On the other hand, Congress may take into
not restricted to those enumerated in consideration not only data available prior to, but likewise events supervening the declaration. Unlike the Court I
Sections I and 5 of Article VIII which does not look into the absolute correctness of the factual basis as will be discussed below, Congress could
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII. For instance, probe deeper and further; it can delve into the accuracy of the facts presented before it.
its jurisdiction to be the sole judge of all contests relating to the election, returns, and qualifications of the
President or Vice-President can be found in the last paragraph of Section 4, Article VII. 102 The power of the Court
In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an appropriate IV. The judicial power to review the sufficiency
proceeding" by a citizen. On the other hand, Congress' review mechanism is automatic in the sense that it may of factual basis of the declaration of martial law
be activated by Congress itself at any time after the proclamation or suspension was made. or the suspension of the privilege of the writ of
Thus, the power to review by the Court and the power to revoke by Congress are not only totally different but habeas corpus does not extend to the calibration
likewise independent from each other although concededly, they have the same trajectory, which is, the of the President's decision of which among his
nullification of the presidential proclamation. Needless to say, the power of the Court to review can be exercised graduated powers he will avail of in a given
independently from the power of revocation of Congress. situation.
The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the armed forces; b)
b) The framers of the 1987 suspending the privilege of the writ of habeas corpus; and c) declaring martial law.112 These powers may be
Constitution intended the judicial resorted to only under specified conditions.
power to review to be exercised The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by revising the
independently from the congressional "grounds for the activation of emergency powers, the manner of activating them, the scope of the powers, and
power to revoke. review of presidential action."113

If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and Congress with a) Extraordinary powers of the
veto powers independently from each other, we quote the following exchange: President distinguished.
MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that Congress will be Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police
able to revoke such proclamation. action.114 The President may resort to this extraordinary power whenever it becomes necessary to prevent or
MR. RAMA. Yes. suppress lawless violence, invasion, or rebellion. "[T]he power to call is fully discretionary to the President;" 115 the
MS. QUESADA. But now, if they cannot meet because they have been arrested or that the Congress has been only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting
padlocked, then who is going to declare that such a proclamation was not warranted? grave abuse of discretion.116 In fact, "the actual use to which the President puts the armed forces is x x x not
xxxx subject to judicial review."117
MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A
petition for a writ of habeas corpus, if the Members are detained, can immediately be applied for, and the The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law
Supreme Court shall also review the factual basis. x x x107 may be exercised only when there is actual invasion or rebellion, and public safety requires it. The 1987
Constitution imposed the following limits in the exercise of these powers: "(1) a time limit of sixty days; (2) review
c) Re-examination of the and possible revocation by Congress; [and] (3) review and possible nullification by the Supreme Court."118
Court's pronouncement in Fortun v.
President Macapagal-Arroyo The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger thereof' as
Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and set aside its grounds for the suspension of the privilege of the writ of habeas corpus or declaration of martial law.119 They
pronouncement in Fortun v. President Macapagal-Arroyo108 to the effect that: perceived the phrase "imminent danger" to be "fraught with possibilities of abuse;" 120 besides, the calling out
Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the power of the President "is sufficient for handling imminent danger."121
factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress
to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment
express duty to defend the Constitution through such review should the Supreme Court step in as its final and suppression of civil rights and individual freedom. Thus, the declaration of martial law serves as a warning to
rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ citizens that the Executive Department has called upon the military to assist in the maintenance of law and order,
of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the and while the emergency remains, the citizens must, under pain of arrest and punishment, not act in a manner
hands of the Court.109 that will render it more difficult to restore order and enforce the law. 122 As such, their exercise requires more
xxxx stringent safeguards by the Congress, and review by the Court.123

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension b) What really happens during martial law?
within the short time expected of it, then the Court can step in, hear the petitions challenging the President's During the oral argument, the following questions cropped up: What really happens during the imposition of
action, and ascertain if it has a factual basis. x x x110 martial law? What powers could the President exercise during martial law that he could not exercise if there is no
By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the same martial law? Interestingly, these questions were also discussed by the framers of the 1987 Constitution, viz.:
to Congress as well as: abdicated from its bounden duty to review. Worse, the Court considered' itself just on FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely does
stand-by, waiting and willing to act as a substitute in case Congress "defaults." It is an aberration, a stray martial law add to the power of the President to call on the armed forces? The first and second lines in this
declaration, which must be rectified and set aside in this proceeding.111 provision state:
We, therefore, hold that the Court can simultaneously exercise its power of review with, and independently from,
the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
deprive or deny the Court of its power to review. courts or legislative assemblies...
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case of Aquino and effect; it does not refer to a
v. COMELEC where the Supreme Court said that in times of martial law, the President automatically has sequence, order, or arrangement by
legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the which the Commander-in-Chief must
Constitution; therefore, it does not suspend the principle of separation of powers. adhere to.
Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of 'graduated
The question now is: During martial law, can the President issue decrees? The answer we gave to that question power[s]'. From the most to the least benign, these are: the calling out power, the power to suspend the privilege
in the Committee was: During martial law, the President may have the powers of a commanding general in a of the writ of habeas corpus, and the power to declare martial law."131 It must be stressed, however, that the
theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence,
authority to issue orders which have the effect of law but strictly in a theater of war, not in the situation we had arrangement, or order which the Commander-in-Chief must follow. This so-called "graduation of powers" does
during the period of martial law. In other words, there is an effort here to return to the traditional concept of not dictate or restrict the manner by which the President decides which power to choose.
martial law as it was developed especially in American jurisprudence, where martial law has reference to the
theater of war.124 These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it
xxxx therefore necessarily follows that the power and prerogative to determine whether the situation warrants a mere
FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of martial law; exercise of the calling out power; or whether the situation demands suspension of the privilege of the writ
meaning, limiting it to martial law as it has existed in the jurisprudence in international law, that it is a law for the of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least initially, with the
theater of war. In a theater of war, civil courts are unable to function. If in the actual theater of war civil courts, in President. The power to choose, initially, which among these extraordinary powers to wield in a given set of
fact, are unable to function, then the military commander is authorized to give jurisdiction even over civilians to conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad enough
military courts precisely because the civil courts are closed in that area. But in the general area where the civil to include his prerogative to address exigencies or threats that endanger the government, and the very integrity
courts are open then in no case can the military courts be given jurisdiction over civilians. This is in reference to a of the State.132
theater of war where the civil courts, in fact, are unable to function.
MR. FOZ. It is a state of things brought about by the realities of the situation in that specified critical area. It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision
FR. BERNAS. That is correct. pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would be tantamount
MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-Chief. to an incursion into the exclusive domain of the Executive and an infringement on the prerogative that solely, at
FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The understanding here is that least initially, lies with the President.
the phrase 'nor authorize the conferment of jurisdiction on military courts and agencies over civilians' has
reference to the practice under the Marcos regime where military courts were given jurisdiction over civilians. We d) The framers of the 1987
say here that we will never allow that except in areas where civil courts are, in fact, unable to function and it Constitution intended the Congress
becomes necessary for some kind of court to function.125 not to interfere a priori in the
decision-making process of the
A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally President.
a function of the Legislature. In particular, the President exercises police power, with the military’s assistance, to The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence of the Congress
ensure public safety and in place of government agencies which for the time being are unable to cope with the in the initial imposition of martial law or suspension of the privilege of the writ of habeas corpus further supports
condition in a locality, which remains under the control of the State.126 the conclusion that judicial review does not include the calibration of the President's decision of which of his
graduated powers will be availed of in a given situation. Voting 28 to 12, the framers of the 1987 Constitution
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's (Justice removed the requirement of congressional concurrence in the first imposition of martial law and suspension of
Mendoza) Statement before the Senate Committee on Justice on March 13, 2006, stated that under a valid the privilege.133
declaration of martial law, the President as Commander-in-Chief may order the "(a) arrests and seizures without MR. PADILLA.x x x
judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and press censorship; We all agree with the suspension of the writ or the proclamation of martial law should not require beforehand the
and (d) issuance of Presidential Decrees x x x".128 concurrence of the majority of the Members of the Congress. However, as provided by the Committee, the
Congress may revoke, amend, or shorten or even increase the period of such suspension.134
Worthy to note, however, that the above-cited acts that the President may perform do not give him unbridled xxxx
discretion to infringe on the rights of civilians during martial law. This is because martial law does not suspend MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of
the operation of the Constitution, neither does it supplant the operation of civil courts or legislative assemblies. martial law there is no need for concurrence of the Members of Congress because the provision says 'in case of
Moreover, the guarantees under the Bill of Rights remain in place during its pendency. And in such instance actual invasion or rebellion.' If there is actual invasion and rebellion, as Commissioner Crispino de Castro said,
where the privilege of the writ of habeas corpus is also suspended, such suspension applies only to those there is a need for immediate response because there is an attack. Second, the fact of securing a concurrence
judicially charged with rebellion or offenses connected with invasion.129 may be impractical because the roads might be blocked or barricaded. x x x So the requirement of an initial
concurrence of the majority of all Members of the Congress in case of an invasion or rebellion might be
Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties,130 the Constitution has impractical as I can see it.
safeguards against the President's prerogative to declare a state of martial law.
Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.
c) "Graduation" of powers
refers to hierarchy based on scope
And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the event of an
it is subject to judicial review at any point in time. So on that basis, I agree that there is no need for concurrence invasion or a rebellion.137
as a prerequisite to declare martial law or to suspend the privilege of the writ of habeas corpus. x x x135
xxxx The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to interfere a
MR. SUAREZ. Thank you. priori in the President's choice of extraordinary powers.
The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and, with the
concurrence of at least a majority of all the Members of the Congress...' e) The Court must similarly
MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ of habeas corpus or and necessarily refrain from
also the declaration of martial law. calibrating the President's decision of
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an exclusive prerogative which among his extraordinary
of the President? powers to avail given a certain
MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be shortened by the situation or condition.
Congress or the Senate because the next sentence says that the Congress or the Senate may even revoke the It cannot be overemphasized that time is paramount in situations necessitating the proclamation of martial law or
proclamation.136 suspension of the privilege of the writ of habeas corpus. It was precisely this time element that prompted the
MR. SUAREZ. x x x Constitutional Commission to eliminate the requirement of 1 concurrence of the Congress in the initial imposition
by the President of martial law or suspension of the privilege of the writ of habeas corpus.
The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively Considering that the proclamation of martial law or suspension of the privilege of the writ of habeas corpus is
unto the President the right to determine the factors which may lead to the declaration of martial law and the now anchored on actual invasion or rebellion and when public safety requires it, and is no longer under threat or
suspension of the writ of habeas corpus. I suppose he has strong and compelling reasons in seeking to delete in imminent danger thereof, there is a necessity and urgency for the President to act quickly to protect the
this particular phrase. May we be informed of his good and substantial reasons? country.138The Court, as Congress does, must thus accord the President the same leeway by not wading into the
realm that is reserved exclusively by the Constitution to the Executive Department.
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding
this phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation of j) The recommendation of the
actual invasion or rebellion. In these situations, the President has to act quickly. Secondly, this declaration has a Defense Secretary is not a condition
time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, for the declaration of martial law or
the right of the judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists, even suspension of the privilege of the writ
during those first 60 days. of habeas corpus.
xxxx Even the recommendation of, or consultation with, the Secretary of National Defense, or other high-ranking
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an aberration in our military officials, is not a condition for the President to declare martial law. A plain reading of Section 18, Article
history and national consciousness. But given the possibility that there would be another Marcos, our VII of the Constitution shows that the President's power to declare martial law is not subject to any condition
Constitution now has sufficient safeguards. As I said, it is not really true, as the Gentleman mentioned, that there except for the requirements of actual invasion or rebellion and that public safety requires it. Besides, it would be
is an exclusive right to determine the factual basis because the paragraph being on line 9 precisely tells us that contrary to common sense if the decision of the President is made dependent on the recommendation of his
the Supreme court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual mere alter ego. Rightly so, it is only on the President and no other that the exercise of the powers of the
basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof and Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.
must promulgate its decision on the same within 30 days from its filing.
I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. g) In any event, the President
And here we are trying to balance the public interest in case of invasion or rebellion as against the rights of initially employed the most benign
citizens. x x x action - the calling out power -
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done? before he declared martial law and
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What we are looking suspended the privilege of the writ of
for are safeguards that arereasonable and, I believe, adequate at this point. On the other hand, in case of habeas corpus.
invasion or rebellion, even during the first 60 days when the intention here is to protect the country in that At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of martial law on May
situation, it would be unreasonable to ask that there should be a concurrence on the part of the Congress, which 23, 201 7, the President had already issued Proclamation No. 55 on September 4, 2016, declaring a state of
situation is automatically terminated at the end of such 60 days. national emergency on account of lawless violence in Mindanao. This, in fact, is extant in the first Whereas
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative check on this Clause of Proclamation No. 216. Based on the foregoing presidential actions, it can be gleaned that although
awesome power of the Chief Executive acting as Commander-in-Chief? there is no obligation or requirement on his part to use his extraordinary powers on a graduated or sequential
MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those conditions. basis, still the President made the conscious anddeliberate effort to first employ the most benign from among his
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority? extraordinary powers. As the initial and preliminary step towards suppressing and preventing the armed
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of Congress would hostilities in Mindanao, the President decided to use his calling out power first. Unfortunately, the situation did not
be available; and, secondly, the President will be able to act quickly in order to deal with the circumstances. improve; on the contrary, it only worsened. Thus, exercising his sole and exclusive prerogative, the President
MR. SUAREZ. So, we would be subordinating actual circumstances to expediency? decided to impose martial law and suspend the privilege of the writ of habeas corpus on the belief that the armed
hostilities in Mindanao already amount to actual rebellion and public safety requires it.
V. Whether or not Proclamation No. 216 may established rule is that'one to whom application of a statute is constitutional will not be heard to attack the statute
be considered vague and thus void because of (a) on the ground that impliedly it might also be taken as applying to other persons or other situations in which its
its inclusion of "other rebel groups"; and (b) the application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment
absence of any guideline specifying its actual context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter
operational parameters within the entire of due process typically are invalidated [only] 'as applied' to a particular defendant.' x x x145
Mindanao region.
Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion of the phrase Invalidation of statutes "on its face" should be used sparingly because it results in striking down statutes entirely
"other rebel groups"139 in its Whereas Clause and for lack of available guidelines specifying its actual operational on the ground that they might beapplied to parties not before the Court whose activities are constitutionally
parameters within the entire Mindanao region, making the proclamation susceptible to broad interpretation, protected.146 "Such invalidation would constitute a departure from the usual requirement of 'actual case and
misinterpretation, or confusion. controversy' and permit decisions to be made in a sterile abstract context having no factual concreteness."147

This argument lacks legal basis. c) Proclamation No. 216

cannot be facially challenged using
a) Void-for-vagueness doctrine. the vagueness doctrine.
The void-for-vagueness doctrine holds that a law is facially invalid if "men of common intelligence must Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted. Proclamation No.
necessarily guess at its meaning and differ as to its application." 140 "[A] statute or act may be said to be vague 216 does not regulate speech, religious freedom, and other fundamental rights that may be facially
when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning challenged.148 What it seeks to penalize is conduct, not speech.
and differ in its application. [In such instance, the statute] is repugnant to the Constitution in two respects: (1) it As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation No. 1017,
violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct issued by then President Gloria Macapagal-Arroyo declaring a state of national emergency, on ground o
to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an vagueness is uncalled for since a plain reading of Proclamation No. 10171 shows that it is not primarily directed
arbitrary flexing of the Government muscle."141 at speech or even speech-related1 conduct. It is actually a call upon the Armed Forces of the Philippines (AFP)
to prevent or suppress all forms of lawless violence. Like Proclamation No. 1017, Proclamation No. 216 pertains
b) Vagueness doctrine applies to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.
only in free speech cases.
The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases d) Inclusion of "other rebel
or, as they are called in American law, First Amendment cases. 142 A facial challenge is allowed to be made to a groups " does not make Proclamation
vague statute and also to one which is overbroad because of possible "'chilling effect' on protected speech that No.216 vague.
comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad interpretation,
under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a misinterpretation, and confusion, cannot be sustained.
crime. The overbroad or vague law thus chills him into silence."143 In People v. Nazario,150 the Court enunciated that:

It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They are not As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men 'of common
appropriate for testing the validity of penal statutes.144 Justice Mendoza explained the reason as follows: intelligence must necessarily guess at its meaning and differ as to its application.' It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying
'chilling effect' upon protected speech. The theory is that ' [w]hen statutes regulate or proscribe speech and no out its provisions and becomes an arbitrary flexing of the Government muscle.
readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,
the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by
on overly broad statutes with no requirement that the person making the attack demonstrate that his own construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had
conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to society in made it illegal for 'three or more persons to assemble on any sidewalk and there conduct themselves in a
permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech manner annoying to persons passing by.' Clearly, the ordinance imposed no standard at all 'because one may
of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly never know in advance what annoys some people but does not annoy others.'
broad statutes.
Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident on its face. It is
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from to be distinguished, however, from legislation couched in imprecise language - but which nonetheless specifies a
their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented standard though defectively phrased - in which case, it may be 'saved' by proper construction.151
from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the
in the area of free speech. words that accompany it. Verily, the text of Proclamation No. 216 refers to "other rebel groups" found in
Proclamation No. 55, which it cited by way of reference in its Whereas clauses.
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on
their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
e) Lack of guidelines/ Even so, the Court's review of the President's declaration of martial law and his calling out the Armed Forces
operational parameters does not necessarily entails separate proceedings instituted for that particular purpose.
make Proclamation No. 216 vague.
Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it has no As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise of his power to call out the
guidelines specifying its actual operational parameters within the entire Mindanao region. Besides, operational armed forces to prevent or suppress lawless violence, invasion or rebellion may only be examined by the Court
guidelines will serve only as mere tools for the implementation of the proclamation. In Part III, we declared that as to whether such power was exercised within permissible constitutional limits or in a manner constituting grave
judicial review covers only the sufficiency of information or data available to or known to the President prior to, or abuse of discretion.155
at the time of, the declaration or suspension. And, as will be discussed exhaustively in Part VII, the review will be
confined to the proclamation itself and the Report submitted to Congress. In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to sufficiently
comply with the requisites of locus standi, as it was not able to show any specific injury which it had suffered or
Clearly, therefore, there is no need for the Court to determine the constitutionality of the implementing and/or could suffer by virtue of President Joseph Estrada's order deploying the Philippine Marines to join the PNP in
operational guidelines, general orders, arrest orders and other orders issued after the proclamation for being visibility patrols around the metropolis.156
irrelevant to its review. Thus, any act committed under the said orders in violation of the Constitution and the
laws, such as criminal acts or human rights violations, should be resolved in a separate proceeding. Finally, there This locus standi requirement, however, need not be complied with in so far as the Court's jurisdiction to review
is a risk that if the Court wades into these areas, it would be deemed as trespassing into the sphere that is the sufficiency of the factual basis of the President's declaration of martial law or suspension of the privilege
reserved exclusively for Congress in the exercise of its power to revoke. ofthe writ of habeas corpus is concerned. In fact, by constitutional design, such review may be instituted by any
citizen before the Court,157 without the need to prove that he or she stands to sustain a direct and personal injury
VI. Whether or not nullifying Proclamation No. as a consequence of the questioned Presidential act/s.
216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial law in this
of the President in calling out the armed forces to case, such ruling could not affect the President's exercise of his calling out power through Proclamation No. 55.
quell lawless violence in Marawi and other parts b) The operative fact doctrine.

of the Mindanao region. Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President done
a) The calling out power is in a pursuant thereto. Under the "operative fact doctrine," the unconstitutional statute is recognized as an "operative
different category from the power to fact" before it is declared unconstitutional.158
declare martial law and the power to
suspend the privilege of the writ of Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null
habeas corpus; nullification of and void. As the new Civil Code puts it: 'When the courts declare a law to be inconsistent with the Constitution,
Proclamation No. 216 will not affect the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall
Proclamation No. 55. be valid only when they are not contrary to the laws or the Constitution.' The above provision of the Civil Code
The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of national reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not a law, confers no
emergency on account of lawless violence in Mindanao through Proclamation No. 55 dated September 4, 2016, rights, imposes no duties, and affords no protection. This doctrine admits of qualifications, however. As the
where he called upon the Armed Forces and the Philippine National 1 Police (PNP) to undertake such measures American Supreme Court stated: 'The actual existence of a statute prior to such a determination [of
to suppress any and all forms of lawless violence in the Mindanao region, and to prevent such lawless violence constitutionality], is an operative fact and may have consequences which cannot always be erased by a new
from spreading and escalating elsewhere in the Philippines. judicial declaration. The effect of the subsequent ruling as to the invalidity may have to be considered in various
aspects, - with respect to particular regulations, individual and corporate, and particular conduct, private and
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different category from the official.
power to suspend the privilege of the writ of habeas corpus and the power to declare martial law:
The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and provides the
x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the measure for the validity of legislative or executive acts. Clearly then, neither the legislative nor the executive
factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the branch, and for that matter much less, this Court, has power under the Constitution to act contrary to its terms.
President's action to call out the armed forces. The distinction places the calling out power in a different Any attempted exercise of power in violation of its provisions is to that extent unwarranted and null.
category from the power to declare martial law and the power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and The growing awareness of the role of the judiciary as the governmental organ which has the final say on whether
provided for their revocation and review without any qualification.153 or not a legislative or executive measure is valid leads to a more appreciative attitude of theemerging concept
that a declaration of nullity may have legal consequences which the more orthodox view would deny. That for a
In other words, the President may exercise the power to call out the Armed Forces independently of the power to period of time such a statute, treaty, executive order, or ordinance was in 'actual existence' appears to be
suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course, it may also be indisputable. What is more appropriate and logical then than to consider it as 'an operative fact?' (Emphasis
a prelude to a possible future exercise of the latter powers, as in this case. supplied)159
However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that would repulse found in the proclamation as well as the written Report submitted by him to Congress. These may be based on
any challenge to acts performed during the effectivity of martial law or suspension of the privilege of the writ the situation existing at the time the declaration was made or past events. As to how far the past events should
of habeas corpus, purportedly in furtherance of quelling rebellion or invasion, and promotion of public safety, be from the present depends on the President.
when evidence shows otherwise.
Past events may be considered as justifications for the declaration and/or suspension as long as these are
VII. The Scope of the Power to Review. connected or related to the current situation existing at the time of the declaration.

a) The scope of the power of As to what facts must be stated in the proclamation and the written Report is up to the President. 165 As
review under the 1987 Constitution Commander-in-Chief, he has sole discretion to determine what to include and what not to include in the
refers only to the determination of the proclamation and the written Report taking into account the urgency of the situation as well as national security.
sufficiency of the factual basis of the He cannot be forced to divulge intelligence reports and confidential information that may prejudice the operations
declaration of martial law and and the safety of the military.
suspension of the privilege of habeas
corpus. Similarly, events that happened after the issuance of the proclamation, which are included in the written report,
To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of Lansang,160 which was cannot be considered in determining the sufficiency of the factual basis of the declaration of martial law and/or
decided under the 1935 Constitution,161 held that it can inquire into, within proper bounds, whether there has the suspension of the privilege of the writ of habeas corpus since these happened after the President had
been adherence to or compliance with the constitutionally-imposed limitations on the Presidential power to already issued the proclamation. If at all, they may be used only as tools, guides or reference in the Court's
suspend the privilege of the writ of habeas corpus.162 "Lansang limited the review function of the Court to a very determination of the sufficiency of factual basis, but not as part or component of the portfolio of the factual basis
prudentially narrow test of arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as follows: itself.
What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general answer
that its power was 'merely to check - not to supplant - the Executive, or to ascertain merely whether he has gone In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look
beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court
wisdom of his act. More specifically, the Court said that its power was not 'even comparable with its power over expect absolute correctness of the facts stated in the proclamation and in the written Report as the President
civil or criminal cases elevated thereto by appeal...in which cases the appellate court has all the powers of the could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the
courtof origin,' nor to its power of quasi-judicial administrative decisions where the Court is limited to asking situation. To require precision in the President's appreciation of facts would unduly burden him and therefore
whether 'there is some evidentiary basis' for the administrative finding. Instead, the Court accepted the Solicitor impede the process of his decision-making. Such a requirement will practically necessitate the President to be on
General's suggestion that it 'go no further than to satisfy [itself] not that the President's decision is correct and the ground to confirm the correctness of the reports submitted to him within a period that only the circumstances
that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending obtaining would be able to dictate. Such a scenario, of course, would not only place the President in peril but
the writ, the President did not act arbitrarily.'164 would also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow the words of
Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the emergency".166 Possibly,
Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing only for judicial by the time the President is satisfied with the correctness of the facts in his possession, it would be too late in the
review based on the determination of the sufficiency of the factual bases, has in fact done away with the test of day as the invasion or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.
arbitrariness as provided in Lansang. Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible
evidence that the President ca appraise and to which he can anchor his judgment, 167 as appears to be the case
b) The "sufficiency of factual here.
basis test".
Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 Constitution are At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J. Velasco
presumed to know the prevailing jurisprudence at the time they were drafting the Constitution. Thus, the phrase Jr. in Fortun:
"sufficiency of factual basis" in Section 18, Article VII of the Constitution should be understood as the only test for
judicial review of the President's power to declare martial law and suspend the privilege of the writ of habeas President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the
corpus under Section 18, Article VII of the Constitution. The Court does not need to satisfy itself that the Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was
President's decision is correct, rather it only needs to determine whether the President's decision had sufficient within their realm of competence, and that a state of emergency has also been declared in Central Mindanao to
factual bases. prevent lawless violence similar to the 'Maguindanao massacre,' which may be an indication that there is a threat
to the public safety warranting a declaration of martial law or suspension of the writ.
We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the introduction of the
"sufficiency of the factual basis" test. Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending the
writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of
As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to suspend the rebellion. The President is called to act as public safety requires.168
privilege of the writ of habeas corpus, subject to the revocation of Congress and the review of this Court. Since
the exercise of these powers is a judgment call of the President, the determination of this Court as to whether Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law even
there is sufficient factual basis for the exercise of such, must be based only on facts or information known by or only on the basis of intelligence reports, it is irrelevant, for purposes of the Court's review, if subsequent events
available to the President at the time he made the declaration or suspension, which facts or information are prove that the situation had not been accurately reported to him.
After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising
declaration or suspension; subsequent events do not have any bearing insofar as the Court's review is publicly and taking arms against the Government for the purpose of removing from the allegiance to said
concerned. In any event, safeguards under Section 18, Article VII of the Constitution are in place to cover such a Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or
situation, e.g., the martial law period is good only for 60 days; Congress may choose to revoke it even other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or
immediately after the proclamation is made; and, this Court may investigate the factual background of the prerogatives.
declaration.169
Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a) public uprising and
Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or (b) taking arms against the Government; and (2) the purpose of the uprising or movement is either (a) to remove
inaccuracies in some of the facts stated in the proclamation and the written report are not enough reasons for the from the allegiance to the Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) any
Court to invalidate the declaration and/or suspension as long as there are other facts in the proclamation and the body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially,
written Report that support the conclusion that there is an actual invasion or rebellion and that public safety of any of their powers and prerogatives."175
requires the declaration and/or suspension.
b) Probable cause is the
In sum, the Court's power to review is limited to the determination of whether the President in declaring martial allowable standard of proof for the
law and suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our review would President.
be limited to an examination on whether the President acted within the bounds set by the In determining the existence of rebellion, the President only needs to convince himself that there is probable
Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or suspension are cause or evidence showing that more likely than not a rebellion was committed or is being committed. 176 To
sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus. require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers. Along this
line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-Arroyo, concluded that the President needs
VIII. The parameters for determining the only to satisfy probable cause as the standard of proof in determining the existence of either invasion or rebellion
sufficiency of the/actual basis/or the declaration for purposes of declaring martial law, and that probable cause is the most reasonable, most practical and most
of martial law and/or the suspension of the expedient standard by which the President can fully ascertain the existence or non-existence of rebellion
privilege of the writ of habeas corpus. necessary for a declaration of martial law or suspension of the writ. This is because unlike other standards of
proof, which, in order to be met, would require much from the President and therefore unduly restrain his
a) Actual invasion or rebellion, exercise of emergency powers, the requirement of probable cause is much simpler. It merely necessitates an
and public safety requirement. "average man [to weigh] the facts and circumstances without resorting to the calibration of the rules of evidence
Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the of which he has no technical knowledge. He [merely] relies on common sense [and] x x x needs only to rest on
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1) actual evidence showing that, more likely than not, a crime has been committed x x x by the accused."177
invasion or rebellion, and (2) public safety requires the exercise of such power." 170 Without the concurrence of the
two conditions, the President's declaration of martial law and/or suspension of the privilege of the writ of habeas To summarize, the parameters for determining the sufficiency of factual basis are as follows: l) actual rebellion or
corpus must be struck down. invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for
the President to believe that there is actual rebellion or invasion.
As a general rule, a word used in a statute which has a technical or legal meaning, is construed to have the
same technical or legal meaning.171 Since the Constitution did not define the term "rebellion," it must be Having laid down the parameters for review, the Court shall nowproceed to the core of the controversy - whether
understood to have the same meaning as the crime of "rebellion" in the Revised Penal Code (RPC).172 Proclamation No. 216,Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas
Corpus in the whole of Mindanao, lacks sufficient factual basis.
During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner Florenz D.
Regalado alluded to actual rebellion as one defined under Article 134 of the RPC: IX. There is sufficient factual basis for the
declaration of martial law and the suspension of
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. the writ of habeas corpus.
Does the Committee mean that there should be actual shooting or actual attack on the legislature or At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of accuracy or
Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident, everybody veracity of the facts upon which the President anchored his declaration of martial law or suspension of the
knows what happened. Would the Committee consider that an actual act of rebellion? privilege of the writ of habeas corpus; rather, only the sufficiency of the factual basis as to convince the President
that there is probable cause that rebellion exists. It must also be reiterated that martial law is a matter ofurgency
MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal and much leeway and flexibility should be accorded the President. As such, he is not expected to completely
Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in validate all the information he received before declaring martial law or suspending the privilege of the writ
Article 134 and by the means employed under Article 135. x x x173 of habeas corpus.

Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article 134 of the We restate the elements of rebellion for reference:
RPC. To give it a different definition would not only create confusion but would also give the President wide 1. That there be (a) public uprising, and (b) taking up arms against the Government; and
latitude of discretion, which may be abused - a situation that the Constitution see k s to prevent.174
Article 134 of the RPC states:
2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to said Government 13. Maute Group has 263 active members, armed and combat-ready;197
or its laws the territory of the Philippines or any part thereof, or any body of land, naval or other armed forces or 14. Extensive networks or linkages of the Maute Group with foreign and local armed groups;198
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.178 15. Adherence of the Maute Group to the ideals espoused by ISIS;199
Petitioners concede that there is an armed public uprising in Marawi City. 179 However, they insist that the armed 16. Publication of a video showing Maute Group's declaration of allegiance to ISIS;200
hostilities do not constitute rebellion in the absence of the element of culpable political purpose, i.e., the removal 17. Foreign-based terrorist groups provide financial and logistical support to the Maute Group;201
from the allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part thereof; 18. Events on May 23, 2017 in Marawi City, particularly:
or (ii) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives. a) at 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various government and
The contention lacks merit. privately-owned facilities;202
b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated the escape of
a) Facts, events and inmates; killed a member of PDEA; assaulted and disarmed on-duty personnel and/or locked them inside the
information upon which the President cells; confiscated cellphones, personnel-issued firearms, and vehicles;203
anchored his decision to declare c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide power outage by evening;204
martial law and suspend the privilege d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi Police Station; commandeered a
of the writ of habeas corpus. police car;205
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM, 180 the Court will e) BJMP personnel evacuated the Marawi City Jail and other affected areas;206
consider only those facts and/or events which were known to or have transpired on or before that time, f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, was taken by the rebels;207
consistent with the scope of judicial review. Thus, the following facts and/or events were deemed to have been g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi junction;208
considered by the President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No. h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns' quarters in the church, and
216 itself: the Shia Masjid Moncado Colony;209
i) taking of hostages from the church;210
1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on account of j) killing of five faculty members of Dansalan College foundation;211
lawless violence in Mindanao;181 k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot School;212
2. Series of violent acts182 committed by the Maute terrorist group including: 1) overrunning of Amai Pakpak Hospital;213
m) hoisting the ISIS flag in several areas;214
a) Attack on the military outpost in Butig, Lanao del Sur m February 2016, killing and wounding n) attacking and burning of the Filipino-Libyan Friendship Hospital;215
several soldiers; o) ransacking of a branch of Landbank of the Philippines and commandeering an armored vehicle;216
b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the Maute Group p) reports regarding Maute Group's plan to execute Christians;217
and other detainees; q) preventing Maranaos from leaving their homes;218
r) forcing young Muslims to join their group;219 and
3. On May 23, 2017:183 s) intelligence reports regarding the existence of strategic mass action of lawless armed groups in Marawi City,
a) Takeover of a hospital in Marawi; seizing public and private facilities, perpetrating killings of government personnel1 , and committing armed
b) Establishment of several checkpoints within Marawi; uprising against and open defiance of the Government.220
c) Burning of certain government and private facilities; b) The President's Conclusion
d) Mounting casualties on the part of the government;
e) Hoisting the flag of ISIS in several areas; and After the assessment by the President of the aforementioned facts, he arrived at the following conclusions, as
f) Capability of the Maute Group and other rebel groups to sow terror, and cause death and damage to property mentioned in Proclamation No. 216 and the Report:
not only in Lanao del Sur but also in other parts of Mindanao; and the Report184 submitted to Congress:
1. Zamboanga siege;185 1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine Government this part
2. Davao bombing;186 of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and
3. Mamasapano carnage;187 to maintain public order and safety in Mindanao, constituting the crime of rebellion."221
4. Cotabato bombings;188 2) "[L]awless armed groups have taken up arms and committed public uprising against the duly constituted
5. Sultan Kudarat bombings;189 government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City of
6. Sulu bombings;190 Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief Executive of
7. Basilan bombings;191 his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao,
8. Attempt to capture Hapilon was confronted with armed resistance by combined forces of ASG and the Maute to the great damage, prejudice, and detriment of the people therein and the nation as a whole."222
Group;192 3) The May 23, 2017 events "put on public display the groups' clear intention to establish an Islamic State and
9. Escalation of armed hostility against the government troops;193 their capability to deprive the duly constituted authorities - the President, foremost - of their powers and
10. Acts of violence directed not only against government authorities and establishments but civilians as well;194 prerogatives. "223
11. Takeover of major social, economic and political foundations which paralyzed Marawi City;195 4) "These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of
12. The object of the armed hostilities was to lay the groundwork for the establishment of a power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire
DAESH/ISIS wilayat or province;196 Mindanao."224
5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand amounts to an excessive restriction on 'the President's power to act as to practically tie her hands and disable
their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the her from effectively protecting the nation against threats to public safety.'
decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a
clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable for a
allegiance to the Government."225 lawful declaration of martial law or suspension of the writ. This amount of proof likewise unduly restrains the
6) "There exists no doubt that lawless armed groups are attempting to deprive the President of his power, President in exercising her emergency powers, as it requires proof greater than preponderance of evidence
authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, although not beyond reasonable doubt.
in an attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his
mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is demanded for a
governments."226 lawful declaration of martial law.
7) "Law enforcement and other government agencies now face pronounced difficulty sending their reports to the xxxx
Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from
performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act and
City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the impose martial law or suspend the writ unreasonably curtails the President's emergency powers.
government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered,
preventing the government from restoring peace and order in the area. Movement by both civilians and Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of her emergency
government personnel to and from the city is likewise hindered."227 powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that
8) "The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in
Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies the
compromised the security of the entire Island of Mindanao."228 standard of proof for a valid declaration of martial law and suspension of the writ.
9) "Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless
armed men, the siege f Marawi City is a vital cog in attaining their long-standing goal: absolute control over the Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and
entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of for the issuance of an arrest warrant by a judge. Probable cause has been defined as a 'set of facts and
the Filipino people and preserve our national integrity."229 circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the
Information or any offense included therein has been committed by the person sought to be arrested.'
Thus, the President deduced from the facts available to him that there was an armed public uprising, the
culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its In determining probable cause, the average man weighs the facts and circumstances without resorting to the
territory and to deprive the Chief Executive of any of his powers and prerogatives, leading the President to calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A
believe that there was probable cause that the crime of rebellion was and is being committed and that public finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been
safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus. committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires
less than evidence that would justify conviction.
A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation
No. 216, had sufficient factual bases tending to show that actual rebellion exists. The President's conclusion, that Probable cause, basically premised on common sense, is the most reasonable, most practical, and most
there was an armed public uprising, the culpable purpose of which was the removal from the allegiance of the expedient standard by which the President can fully ascertain the existence or non-existence of rebellion,
Philippine Government a portion of its territory and the deprivation of the President from performing his powers necessary for a declaration of martial law x x x230
and prerogatives, was reached after a tactical consideration of the facts. In fine, the President satisfactorily
discharged his burden of proof. c) Inaccuracies, simulations,
falsities, and hyperboles.
After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the Report are false,
martial law and suspension of the privilege of the writ of habeas corpus. As Justice Carpio decreed in his Dissent inaccurate, simulated, and/or hyperbolic, does not persuade. As mentioned, the Court is not concerned about
in Fortun: absolute correctness, accuracy, or precision of the facts because to do so would unduly tie the hands of the
President in responding to an urgent situation.
x x x [T]he Constitution does not compel the President to produce such amount of proof as to unduly burden and
effectively incapacitate her from exercising such powers. Specifically, it alleges that the following facts are not true as shown by its counter-evidence.231
FACTUAL STATEMENTS COUNTER-EVIDENCE
Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof required
for convicting an accused charged with a criminal offense.x x x (1) that the Maute group attacked Amai Pakpak Hospital Statements made by:
xxxx and hoisted the DAESH flag there, among several (a) Dr. Amer Saber, Chief of the Hospital
locations. As of 0600H of 24 May 2017, members of the (b) Health Secretary Paulyn Ubial;
Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to establish the Maute Group were seen guarding the entry gates of the (c) PNP Spokesperson Senior Supt. Dionardo
existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the writ Amai Pakpak Hospital and that they held hostage the Carlos;
employees of the Hospital and took over the PhilHealth (d) AFP Public Affairs Office Chief Co. Edgard e) There are other independent
office located thereat (Proclamation No. 216 and Report); Arevalo; and facts which support the finding that,
(e) Marawi City Mayor Majul Gandamra denying that more likely than not, rebellion exists
the hospital was attacked by the Maute Group citing and that public safety requires it.
online news articles of Philstar, Sunstar, Inquirer, Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report; along with
and Bombo Radyo.232 these alleged false data is an arsenal of other independent facts showing that more likely than not, actua1
rebellion exists, and public safety requires the declaration of martial law or suspension of the privilege of the writ
2. that the Maute Group ambushed and burned the Marawi Statements made by PNP Director General Ronald of habeas corpus. To be precise, the alleged false and/or inaccurate statements are only five out of the severa1
Police Station (Proclamation No. 216 and the Report); dela Rosa and Marawi City Mayor Majul Gandamra statements bulleted in the President's Report. Notably, in the interpellation by Justice Francis H. Jardeleza during
in the online news reports of ABS-CBN News and the second day of the oral argument, petitioner Lagman admitted that he was not aware or that he had no
CNN Philippines233denying that the Maute group personal knowledge of the other incidents cited.241 As it thus stands, there is no question or challenge with
occupied the Marawi Police Station. respect to the reliability of the other incidents, which by themselves are ample to preclude the conclusion that the
3. that lawless armed groups likewise ransacked the Statement made by the bank officials in the on-line President's report is unreliable and that Proclamation No. 216 was without sufficient factual basis.
Landbank of the Philippines and commandeered one of its news article of Philstar234 that the Marawi City
armored vehicles (Report); branch was not ransacked but sustained damages Verily, there is no credence to petitioners' claim that the bases for the President's imposition of martial law and
from the attacks. suspension of the writ of habeas corpus were mostly inaccurate, simulated, false and/or hyperbolic.
4. that the Marawi Central Elementary Pilot School was Statements in the on-line news article of X. Public safety requires the declaration of
burned (Proclamation No. 216 and the Report); Philstar235 made by the Marawi City Schools Division martial law and the suspension of the privilege of
Assistant Superintendent Ana Alonto denying that the writ of habeas corpus in the whole of
the school was burned and Department of Education Mindanao.
Assistant Secretary Tonisito Umali stating that they Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of martial
have not received any report of damage. law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or suspension of
5. that the Maute Group attacked various government Statement in the on-line news article of the privilege of the writ of habeas corpus to be valid, there must be a concurrence of actual rebellion or invasion
facilities (Proclamation No. 216 and the Report). Inquirer236 made by Marawi City Mayor Majul and the public safety requirement. In his Report, the President noted that the acts of violence perpetrated by the
Gandamra stating that the ASG and the Maute ASG and the Maute Group were directed not only against government forces or establishments but likewise
Terror Groups have not taken over any government against civilians and their properties.242 In addition and in relation to the armed hostilities, bomb threats were
facility in Marawi City. issued;243 road blockades and checkpoints were set up; 244 schools and churches were burned;245 civilian
However, the so-called counter-evidence were derived solely from unverified news articles on the internet, with hostages were taken and killed;246 non-Muslims or Christians were targeted;247 young male Muslims were forced
neither the authors nor the sources shown to have affirmed the contents thereof It was not even shown that to join their group;248 medical services and delivery of basic services were hampered; 249 reinforcements of
efforts were made to secure such affirmation albeit the circumstances proved futile. As the Court has consistently government troops and civilian movement were hindered; 250 and the security of the entire Mindanao Island was
ruled, news articles are hearsay evidence, twice removed, and are thus without any probative value, unless compromised.251
offered for a purpose other than proving the truth of the matter asserted. 237 This pronouncement applies with
equal force to the Cullamat Petition which likewise submitted online news articles 238 as basis for their claim of These particular scenarios convinced the President that the atrocities had already escalated to a level that risked
insufficiency of factual basis. public safety and thus impelled him to declare martial law and suspend the privilege of the writ of habeas
corpus. In the last paragraph of his Report, the President declared:
Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in these cases. As
long as there are other facts in the proclamation and the written Report indubitably showing the presence of an While the government is presently conducting legitimate operations to address the on-going rebellion, if not the
actual invasion or rebellion and that public safety requires the declaration and/or suspension, the finding of seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of
sufficiency of factual basis, stands. the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely
quelled.252
d) Ruling in Bedol v.
Commission on Elections not Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of the
Applicable. privilege of the writ f habeas corpus have been properly and fully complied with. Proclamation No. 216 has
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be admitted on sufficient factual basis there being probable cause to believe that rebellion exists and that public safety requires
grounds of relevance, trustworthiness, and necessity. Petitioners' reliance on this case is misplaced. The Court the martial law declaration and the suspension of the privilege of the writ of habeas corpus.
in Bedol made it clear that the doctrine of independent relevant statement, which is an ·exception to the hearsay
rule, applies in cases "where only the fact that such statements were made is relevant, and the truth or falsity XI. Whole of Mindanao
thereof is immaterial."240 Here, the question is not whether such statements were made by Saber, et. al., but a) The overriding and
rather whether what they said are true. Thus, contrary to the view of petitioners, the exception in Bedol finds no paramount concern of martial law is
application here. the protection of the security of the
nation and the good and safety of the c) The Court has no machinery
public. or tool equal to that of the
Considering the nation's and its people's traumatic experience martial law under the Marcos regime, one would Commander-in-Chief to ably and
expect the framers of the 1987 Constitution to stop at nothing from not resuscitating the law. Yet it would appear properly assess the ground
that the constitutional writers entertained no doubt about the necessity and practicality of such specie of conditions.
extraordinary power and thus, once again, bestowed on the Commander-in-Chief the power to declare martial In contrast, the Court does not have the same resources available to the President. However, this should not be
law albeit in its diluted form. considered as a constitutiona1 lapse. On the contrary, this is in line with the function of the Court, particularly in
this instance, to determine the sufficiency of factual basis of Proclamation No. 216. As thoroughly discussed in
Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are necessary for the Part VIII, the determination by the Court of the sufficiency of factual basis must be limited only to the facts and
protection of the security of the nation; suspension of the privilege of the writ of habeas corpus is "precautionary , information mentioned in the Report and Proclamation. In fact, the Court, in David v. President Macapagal-
and although it might [curtail] certain rights of individuals, [it] is for the purpose of defending and protecting the Arroyo,258 cautioned not to "undertake an independent investigation beyond the pleadings." In this regard, "the
security of the state or the entire country and our sovereign people". 253 Commissioner Ople referred to the Court will have to rely on the fact-finding capabilities of the [E]xecutive [D]epartment;" 259 in turn, the Executive
suspension of the privilege of the writ of habeas corpus as a "form of immobilization" or "as a means of Department will have to open its findings to the Court, 260 which it did during the closed door session last June 15,
immobilizing potential internal enemies" "especially in areas like Mindanao."254 2017.
d) The 1987 Constitution
Aside from protecting the security of the country, martial law also guarantees and promotes public safety. It is grants to the President, as
worthy of mention that rebellion alone does not justify the declaration of martial law or suspension of the privilege Commander-in-Chief, the discretion
of the writ of habeas corpus; the public safety requirement must likewise be present. to determine the territorial coverage
or application of martial law or
b) As Commander-in-Chief, the suspension of the privilege of the writ
President receives vital, relevant, of habeas corpus.
classified, and live information which Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the public safety
equip and assist him in making requires it, [the President] may x x x suspend the privilege of writ of habeas corpus or place the Philippines or
decisions. any part thereof under martial law." Clearly, the Constitution grants to the President the discretion to determine
In Parts IX and X, the Court laid down the arsenal of facts and events that formed the basis for Proclamation No. the territorial coverage of martial law and the suspension of the privilege of the writ of habeas corpus. He may
216. For the President, the totality of facts and events, more likely than not, shows that actual rebellion exists put the entire Philippines or only a part thereof under martial law.
and that public safety requires the declaration of martial law and suspension of the privilege of the writ of habeas
corpus. Otherwise stated, the President believes that there is probable cause that actual rebellion exists and This is both an acknowledgement and a recognition that it is the Executive Department, particularly the President
public safety warrants the issuance of Proclamation No. 216. In turn, the Court notes that the President, in as Commander-in-Chief, who is the repository of vital, classified, and live information necessary for and relevant
arriving at such a conclusion, relied on the facts and events included in the Report, which we find sufficient. in calibrating the territorial application of martial law and the suspension of the privilege of the writ of habeas
corpus. It, too, is a concession that the President has the tactical and military support, and thus has a more
To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or all- informed understanding of what is happening on the ground. Thus, the Constitution imposed a limitation on the
encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the President has period of application, which is 60 days, unless sooner nullified, revoked or extended, but not on the territorial
possession of documents and information classified as "confidential", the contents of which cannot be included in scope or area of coverage; it merely stated "the Philippines or any part thereof," depending on the assessment of
the Proclamation or Report for reasons of national security. These documents may contain information detailing the President.
the position of government troops and rebels, stock of firearms or ammunitions, ground commands and
operations, names of suspects and sympathizers, etc. , In fact, during the closed door session held by the Court, e) The Constitution has
some information came to light, although not mentioned in the Proclamation or Report. But then again, the provided sufficient safeguards against
discretion whether to include the same in the Proclamation or Report is the judgment call of the President. In possible abuses of Commander-in-
fact, petitioners concede to this. During the oral argument, petitioner Lagman admitted that "the assertion of facts Chief's powers; further curtailment of
[in the Proclamation and Report] is the call of the President."255 Presidential powers should not only
be discouraged but also avoided.
It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for the Considering the country's history, it is understandable that the resurgence of martial law would engender
President as [C]ommander-in[C]hief of the Armed Forces to appraise these [classified evidence or apprehensions among the citizenry. Even the Court as an institution cannot project a stance of nonchalance.
documents/]reports and be satisfied that the public safety demands the suspension of the writ."256 Significantly, However, the importance of martial law in the context of our society should outweigh one's prejudices and
respect to these so-called classified documents is accorded even "when [the] authors of or witnesses to these apprehensions against it. The significance of martial law should not be undermined by unjustified fears and past
documents may not be revealed."257 experience. After all, martial law is critical and crucial to the promotion of public safety, the preservation of the
nation's sovereignty and ultimately, the survival of our country. It is vital for the protection of the country not only
In fine, not only does the President have a wide array of information before him, he also has the right, against internal enemies but also against those enemies lurking from beyond our shores. As such, martial law
prerogative, and the means to access vital, relevant, and confidential data, concomitant with his position as should not be cast aside, or its scope and potency limited and diluted, based on bias and unsubstantiated
Commander-in-Chief of the Armed Forces. assumptions.
Conscious of these fears and apprehensions, the Constitution placed several safeguards which effectively It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the
watered down the power to declare martial law. The 1987 Constitution "[clipped] the powers of [the] Commander- government;"266 and that by nature, "rebellion is x x x a crime of masses or multitudes, involving crowd action,
in-Chief because of [the] experience with the previous regime." 261 Not only were the grounds limited to actual that cannot be confined a priori, within predetermined bounds."267 We understand this to mean that the precise
invasion or rebellion, but its duration was likewise fixed at 60 days, unless sooner revoked, nullified, or extended; extent or range of the rebellion could not be measured by exact metes and bounds.
at the same time, it is subject to the veto powers of the Court and Congress.
To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura, Ermita, Manila
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted his colleagues in where the Court's compound is situated. They overpowered the guards, entered the Court's premises, and
the Constitutional Convention to look at martial law from a new perspective by elaborating on the sufficiency of hoisted the ISIS flag. Their motive was political, i.e., they want to remove from the allegiance to the Philippine
the proposed safeguards: government a part of the territory of the Philippines, particularly the Court's compound and establish it as an
ISIS-territory.
MR. MONSOD. x x x
Second, we have been given a spectre of non sequitur, that the mere declaration of martial law for a fixed period Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we validly say that the
not exceeding 60 days, which is subject to judicial review, is going to result in numerous violations of human rebellion is confined only within the Court's compound? Definitely not. The possibility that there are other rebels
rights, the predominance of the military forever and in untold sufferings. Madam President, we are talking about positioned in the nearby buildings or compound of the Philippine General Hospital (PGH) or the Manila Science
invasion and rebellion. We may not have any freedom to speak of after 60 days, if we put as a precondition the High Schoo1 (MSHS) could not be discounted. There is no way of knowing that all participants in the rebellion
concurrence of Congress. That might prevent the President from acting at that time in order to meet the problem. went and stayed inside the Court's compound.
So I would like to suggest that, perhaps, we should look at this in its proper perspective. We are only looking at a
very specific case. We are only looking at a case of the first 60 days at its maximum. And we are looking at Neither could it be validly argued that the armed contingent positioned in PGH or MSHS is not engaged in
actual invasion and rebellion, and there are other safeguards in those cases.262 rebellion because there is no publicity in their acts as, in fact, they were merely lurking inside the compound of
Even Bishop Bacani was convinced that the 1987 Constitution has enough safeguards against presidential PGH and MSHS. However, it must be pointed out that for the crime of rebellion to be consummated, it
abuses and commission of human rights violations. In voting yes for the elimination of the requirement of prior is not required that all armed participants should congregate in one place, in this case, the Court's compound,
concurrence of Congress, Bishop Bacani stated, viz.: and publicly rise in arms against the government for the attainment of their culpable purpose. It suffices that
BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite my concern for human rights, I a portion of the contingent gathered and formed a mass or a crowd and engaged in an armed public uprising
believe that a good President can also safeguard human rights and human lives as well. And I do not want to against the government. Similarly, it cannot be validly concluded that the grounds on which the armed public
unduly emasculate the powers of the President. Xxx263 uprising actually to6k place should be the measure of the extent, scope or range, of the actual I rebellion. This is
Commissioner Delos Reyes shared the same sentiment, to wit: logical since the other rebels positioned in PGH, MSHS, I or elsewhere, whose participation did not involve
MR. DE LOS REYES. May I explain my vote, Madam President. the publicity aspect of rebellion, may also be considered as engaging in the crime of rebellion.
x x x The power of the President to impose martial law is doubtless of a very high and delicate nature. A free
people are naturally jealous of the exercise of military power, and the power to impose martial law is certainly felt Proceeding from the same illustration, suppose we say that the President, after finding probable cause that there
to be one of no ordinary magnitude. But as presented by the Committee, there are many safeguards: 1) it is exists actual rebellion and that public safety requires it, declares martial law and suspends the writ of habeas
limited to 60 days; 2) Congress can revoke it; 3) the Supreme Court can still review as to the sufficiency of corpus in the whole of Metro Manila, could we then say that the territorial coverage of the proclamation is too
factual basis; and 4) it does not suspend the operation of the Constitution. To repeat what I have quoted when I expansive?
interpellated Commissioner Monsod, it is said that the power to impose martial law is dangerous to liberty and
may be abused. All powers may be abused if placed in unworthy hands. But it would be difficult, we think, to point To answer this question, we revert back to the premise that the discretion to determine the territorial scope of
out any other hands in which this power will be more safe and at the same time equally effectual. When citizens martial law lies with the President. The Constitution grants him the prerogative whether to put the entire
of the State are in arms against each other and the constituted authorities are unable to execute the laws, the Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be
action of the President must be prompt or it is of little value. x x x264 (Emphasis supplied) confined only in the particular place where the armed public uprising actually transpired. This is not only practical
At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987 Constitution but also logical. Martial law is an urgent measure since at stake is the nation's territorial sovereignty and survival.
that sufficient safeguards against possible misuse and abuse by the Commander-in-Chief of his extraordinary As such, the President has to respond quickly. After the rebellion in the Court's compound, he need not wait for
powers are already in place and that no further emasculation of the presidential powers is called for in the guise another rebellion to be mounted in Quezon City before he could impose martial law thereat. If that is the case,
of additional safeguards. The Constitution recognizes that any further curtailment, encumbrance, or emasculation then the President would have to wait until every remote corner in the country is infested with rebels before he
of the presidential powers would not generate any good among the three co-equal branches, and to the country could declare martial law in the entire Philippines. For sure, this is not the scenario envisioned by the
and its citizens as a whole. Thus: Constitution.
MR. OPLE. The reason for my concern, Madam President, is that when we put all of these encumbrances on the
President and Commander-in-Chief during an actual invasion or rebellion, given an intractable Congress that Going back to the illustration above, although the President is not required to impose martial law only within the
may be dominated by opposition parties, we may be actually impelling the President to use the sword of Court's compound because it is where the armed public uprising actually transpired, he may do so if he sees fit.
Alexander to cut the Gordian knot by just declaring a revolutionary government that sets him free to deal with the At the same time, however, he is not precluded from expanding the coverage of martial law beyond the Court's
invasion or the insurrection. x x x265 (Emphasis supplied) compound. After all, rebellion is not confined within predetermined bounds.

f) Rebellion and public safety; Public safety, which is another component element for the declaration of martial law, "involves the prevention of
nature, scope, and range. and protection from events that could endanger the safety of the general public from significant danger,
injury/harm, or damage, such as crimes or disasters." 268 Public safety is an abstract term; it does not take any attack in Cotabato City. The Court has no military background and technical expertise to predict that. In the same
physical form. Plainly, its range, extent or scope could not be physically measured by metes and bounds. manner, the Court lacks the technical capability to determine which part of Mindanao would best serve as
forward operating base of the military in their present endeavor in Mindanao. Until now the Court is in a quandary
Perhaps another reason why the territorial scope of martial law should not necessarily be limited to the particular and can only speculate whether the 60-day lifespan of Proclamation No. 216 could outlive the present hostilities
vicinity where the armed public uprising actually transpired, is because of the unique characteristic of rebellion as in Mindanao. It is on this score that the Court should give the President sufficient leeway to address the peace
a crime. "The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of and order problem in Mindanao.
intrigues and plots. Acts committed in furtherance of rebellion[,] though crimes in themselves[,] are deemed
absorbed in one single crime of rebellion." 269 Rebellion absorbs "other acts committed in its pursuance". 270 Direct Thus, considering the current situation, it will not serve any purpose if the President is goaded into using "the
assault,271murder,272 homicide,273 arson,274 robbery,275 and kidnapping,276 just to name a few, are absorbed in the sword of Alexander to cut the Gordian knot"282 by attempting to impose another encumbrance; after all "the
crime of rebellion if committed in furtherance of rebellion; "[i]t cannot be made a basis of a separate declaration of martial law or the suspension of the privilege of the writ of habeas corpus is essentially an
charge."277Jurisprudence also teaches that not only common crimes may be absorbed in rebellion but also executive act."283
"offenses under special laws [such as Presidential Decree No. 1829] 278 which are perpetrated in furtherance of
the political offense".279 "All crimes, whether punishable under a special law or general law, which are me e Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give the President a
components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and nudge, so to speak, as some sort of reminder of the nation's experience under the Marcos-styled martial law.
cannot be isolated and charged as separate crimes in themselves.280 However, it is not fair to judge President Duterte based on the ills some of us may have experienced during the
Marcos-martial law era. At this point, the Court quotes the insightful discourse of Commissioner Ople:
Thus, by the theory of absorption, the crime of murder committed in Makati City, if committed in furtherance of MR. OPLE. x x x
the crime of rebellion being hypothetically staged in Padre Faura, Ermita, Manila, is stripped of its common xxxx
complexion and is absorbed in the crime of rebellion. This all the more makes it difficult to confine the application Madam President, there is a tendency to equate patriotism with rendering the executive branch of the
of martial law only to the place where the armed public uprising is actually taking place. In the illustration above, government impotent, as though by reducing drastically the powers of the executive, we are rendering a service
Padre Faura could only be the nerve center of the rebellion but at the same time rebellion is also happening in to human welfare. I think it is also important to understand that the extraordinary measures contemplated in the
Makati City. Article on the Executive pertain to a practical state of war existing in this country when national security will
become a common bond of patriotism of all Filipinos, especially if it is an actual invasion or an actual rebellion,
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of and the President may have to be given a minimum flexibility to cope with such unprecedented threats to the
actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. survival of a nation. I think the Commission has done so but at the same time has not, in any manner, shunned
Their transitory and abstract nature defies precise measurements; hence, the determination of the territorial the task of putting these powers under a whole system of checks and balances, including the possible revocation
scope of martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must have at any time of a proclamation of martial law by the Congress, and in any case a definite determination of these
considered these limitations when it granted the President wide leeway and flexibility in determining the territorial extraordinary powers, subject only to another extension to be determined by Congress in the event that it is
scope of martial law. necessary to do so because the emergency persists.

Moreover, the President's duty to maintain peace and public safety is not limited only to the place where there is So, I think this Article on the Executive for which I voted is completely responsible; it is attuned to the freedom
actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over. It is not and the rights of the citizenry. It does not render the presidency impotent and, at the same time, it allows for a
intended merely to prevent the escape of lawless elements from Marawi City, but also to avoid enemy vigorous representation of the people through their Congress when an emergency measure is in force and
reinforcements and to cut their supply lines coming from different parts of Mindanao. Thus, limiting the effect.284
proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose of
declaring martial law, it will make the exercise thereof ineffective and useless. h) Several local armed groups
have formed linkages aimed at
g) The Court must stay within committing rebellion and acts in
the confines of its power. furtherance thereof in the whole of
The Court can only act within the confines of its power.1âwphi1 For the Court to overreach is to infringe upon Mindanao.
another's territory. Clearly, the power to determine the scope of territorial application belongs to the President. With a predominantly Muslim population, Marawi City is "the only Islamic City of the South." 285 On April 15, 1980,
"The Court cannot indulge in judicial legislation without violating the principle of separation of powers, and, it was conferred the official title of "Islamic City of Marawi." 286 The city's first name, "Dansalan," "was derived from
hence, undermining the foundation of our republican system."281 the word 'dansal', meaning a destination point or rendezvous. Literally, it also means arrival or coming." 287 Marawi
lies in the heart of Mindanao. In fact, the Kilometer Zero marker in Mindanao is found in Marawi City thereby
To reiterate, the Court is not equipped with the competence and logistical machinery to determine the strategical making Marawi City the point of reference of all roads in Mindanao.
value of other places in the military's efforts to quell the rebellion and restore peace. It would be engaging in an
act of adventurism if it dares to embark on a mission of deciphering the territorial metes and bounds of martial Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both for symbolic
law. To be blunt about it, hours after the proclamation of martial law none of the members of this Court could and strategic reasons. Marawi may not be the target but the whole of Mindanao. As mentioned in the Report,
have divined that more than ten thousand souls would be forced to evacuate to Iligan and Cagayan de Oro and "[l]awless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines,
that the military would have to secure those places also; none of us could have predicted that Cayamora Maute and backdoor passages;"288 there is also the plan to establish a wilayat in Mindanao by staging the siege of
would be arrested in Davao City or that his wife Ominta Romato Maute would be apprehended in Masiu, Lanao Marawi. The report that prior to May 23, 2017, Abdullah Maute had already dispatched some of his men to
del Sur; and, none of us had an inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would launch an various places in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombing operations, carnapping,
and the murder of military and police personnel, 289 must also be considered. Indeed, there is some semblance of In any case, even assuming that the insurgency in Marawi City can also be characterized as terrorism, the same
truth to the contention that Marawi is only the start, and Mindanao the end. will not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise known as
the Human Security Act of 2007 expressly provides that "[n]othing in this Act shall be interpreted as a curtailment,
Other events also show that the atrocities were not concentrated in Marawi City. Consider these: restriction or diminution of constitutionally recognized powers of the executive branch of the government." Thus,
a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Uno, Lamita City, as long as the President complies with all the requirements of Section 18, Article VII, the existence of terrorism
Basilan. A civilian was killed while another was wounded.290 cannot prevent him from exercising his extraordinary power of proclaiming martial ' law or suspending the
b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island, Taganak, Tawi-Tawi.291 privilege of the writ of habeas corpus. After all, the extraordinary powers of the President are bestowed on him by
c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan resulting in the death the Constitution. No act of Congress can, therefore, curtail or diminish such powers.
of two children and the wounding of three others.292
d. From March to May 2017, there were eleven (11) separate instances of IED explosions by the BIFF in Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and terrorism are
Mindanao. These resulted in the death and wounding of several personalities.293 mutuallty exclusive of each other or that they cannot co-exist together. RA 9372 does not expressly or impliedly
e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu.294 repeal Art. 134 of the RPC. And while rebellion is one of the predicate crimes of terrorism, one cannot absorb the
f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels and government other as they have different elements.300
troops.295
g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde.296 Verily, the Court upholds the validity of the declaration of martial law and suspension of the privilege of the writ
h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days later.297 of habeas corpus in the entire Mindanao region.

There were also intelligence reports from the military about offensives committed by the ASG and other local At the end of the day, however ardently and passionately we may believe in the validity or correctness of the
rebel groups. All these suggest that the rebellion in Marawi has already spilled over to other parts of Mindanao. varied and contentious causes or principles that we espouse, advocate or champion, let us not forget that at this
point in time we, the Filipino people, are confronted with a crisis of such magnitude and proportion that we all
Moreover, considering the widespread atrocities in Mindanao and the linkages established among rebel groups, need to summon the spirit of unity and act as one undivided nation, if we are to overcome and prevail in the
the armed uprising that was initially staged in Marawi cannot be justified as confined only to Marawi. The Court struggle at hand.
therefore will not simply disregard the events that happened during the Davao City bombing, the Mamasapano
massacre, the Zamboanga City siege, and the countless bombings in Cotabato, Sultan Kudarat, Sulu, and Let us face up to the fact that the siege in Marawi City has entered the second month and only God or Allah
Basilan, among others.298 The Court cannot simply take the battle of Marawi in isolation. As a crime without knows when it would end. Let us take notice of the fact that the casualties of the war are mounting. To date, 418
predetermined bounds, the President has reasonable basis to believe that the declaration of martial law, as well have died. Out of that were 303 Maute rebels as against 71 government troops and 44 civilians.
as the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, is most necessary,
effective, and called for by the circumstances. Can we not sheathe our swords and pause for a while to bury our dead, including our differences and
prejudices?
i) Terrorism neither negates
nor absorbs rebellion. WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No. 216
It is also of judicial notice that the insurgency in Mindanao has been ongoing for decades. While some groups and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED.
have sought legal and peaceful means, others have resorted to violent extremism and terrorism. Rebellion may
be subsumed under the crime of terrorism, which has a broader scope covering a wide range of predicate SO ORDERED.
crimes. In fact, rebellion is only one of the various means by which terrorism can be committed. 299 However, while
the scope of terrorism may be comprehensive, its purpose is distinct and well-defined. The objective of a
"'terrorist" is to sow and create a condition of widespread fear among the populace in order to coerce the
government to give in to an unlawful demand. This condition of widespread fear is traditionally achieved through
bombing, kidnapping, mass killing, and beheading, among others. In contrast, the purpose of rebellion, as
previously discussed, is political, i.e., (a) to remove from the allegiance to the Philippine Government or its laws:
(i) the territory of the Philippines or any part thereof; (ii) any body of land, naval, or armed forces; or (b) to deprive
the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.

In determining what crime was committed, we have to look into the main objective of the malefactors. If it is
political, such as for the purpose of severing the allegiance of Mindanao to the Philippine Government to
establish a wilayat therein, the crime is rebellion. If, on the other hand, the primary objective is to sow and create
a condition of widespread and extraordinary fear and panic among the populace in order to coerce the
government to give in to an unlawful demand, the crime is terrorism. Here, we have already explained and ruled
that the President did not err in believing that what is going on in Marawi City is one contemplated under the
crime of rebellion.
 [G.R. No. 147780. May 10, 2001] detention be without legal ground, the person arrested can charge the arresting officer with arbitrary
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article
HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of,
BERROYA, respondents. thereby making the prayer for prohibition and mandamus improper at this time (Sections 2 and 3, Rule 65, Rules
RESOLUTION of Court).

MELO, J.: Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the
On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed with explosives, petitions at bar.
G.R. No. 14778
firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to break into
Malacaang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and Mancao pray
Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the that the appropriate court before whom the informations against petitioners are filed be directed to desist from
Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several arraigning and proceeding with the trial of the case, until the instant petition is finally resolved. This relief is
alleged leaders and promoters of the rebellion were thereafter effected. clearly premature considering that as of this date, no complaints or charges have been filed against any of the
petitioners for any crime. And in the event that the same are later filed, this court cannot enjoin criminal
Aggrieved by the warrantless arrests, and the declaration of a state of rebellion, which allegedly gave a prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in
semblance of legality to the arrests, the following four related petitions were filed before the Court- pursuance of a duly issued warrant.

(1) G.R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application As regards petitioners prayer that the hold departure orders issued against them be declared null and
for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilo M. Lacson, void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure
Michael Ray B. Aquino, and Cezar O. Mancao; (2) G.R. No. 147781 for mandamus and/or review of the factual orders in their petition. The are not even expressing intention to leave the country in the near future. The prayer
basis for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining to set aside the same must be made in proper proceedings initiated for that purpose.
order filed by Miriam Defensor-Santiago; (3) G.R. No. 147799 for prohibition and injunction with prayer for a writ
of preliminary injunction and/or restraining order filed by Rolando A. Lumbao; and (4) G.R. No. 147810 for Anent petitioners allegations ex abundante ad cautelam in support of their application for the issuance of a
certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino. writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from
unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this
All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal- very day.
G.R. No. 147781
Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact an in
law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a state of The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in
rebellion in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular
petitioners claim that the proclamation of a state of rebellion is being used by the authorities to justify warrantless act which is sought to be compelled must be clear and complete. Mandamus will not issue the right to relief is
arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor-
connection with the rebellion. He states that what is extant are general instructions to law enforcement officers Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the
and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents Joint Comments: authorities have categorically stated that petitioner will not be arrested without a warrant.
G.R. No. 147799

[I]t is already the declared intention of the Justice Department and police authorities to obtain regular Petitioner Lumbao, leader of the Peoples Movement against Poverty (PMAP), for his part, argues that the
warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that declaration of a state of rebellion is violative of the doctrine of separation of powers, being an encroachment on
preliminary investigators will henceforth be conducted. the domain of the judiciary which has the constitutional prerogative to determine or interpret what took place on
May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the
With this declaration, petitioners apprehensions as to warrantless arrests should be laid to rest. allocation of the governmental powers.
In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons
suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so We disagree. To be sure, section 18, Article VII of the Constitution expressly provides that [t]he President
warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion. shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion thus, we held in
Moreover, petitioners contention in G.R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):
Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant xxx The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual established since matters considered for satisfying the same is a combination of several factors which are not
subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual always accessible to the courts. Besides the absence of testual standards that the court may use to judge
may ask for a preliminary investigation under Rule 112 of the Rules of court, where he may adduce evidence in necessity, information necessary to arrive at such judgment might also prove unmanageable for the
his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain courts. Certain pertinent information necessary to arrive at such judgment might also prove unmanageable for
under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many
be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal instances, the evidence upon which the President might decide that there is a need to call out the armed forces
Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information,
some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. xxx
(at pp. 22-23)

The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this
power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted.
G.R. No. 147810

Petitioner Laban ng Demoktratikong Pilipino is not a real party-in-interest. The rule requires that a party
must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision so as to warrant an invocation of the courts jurisdiction and to justify the exercise of the courts
remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not
demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject
to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders,
members, and supporters are being threatened with warrantless arrest and detention for the crime of
rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed,
or whose legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its
right to freedom of expression and freedom of assembly is affected by the declaration of a state of rebellion and
that said proclamation is invalid for being contrary to the Constitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court
not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits
the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780,
147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together
with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from
arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in
connection with the May 1, 2001 siege of Malacaang.

SO ORDERED.

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M.
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
 cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention.
KAPUNAN, J.: Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the
commanding the deployment of the Philippine Marines (the Marines) to join the Philippine National Police (the maintenance of peace and order in their locality.
PNP) in visibility patrols around the metropolis. c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and monitoring and assessing the security situation.
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility xxx.[8]
patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of
Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta
Local Government were tasked to execute and implement the said order. In compliance with the presidential Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and
mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction Domestic Airport.[9]
02/2000[1] (the LOI) which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul LOI
of Metro Manila. 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing
that:
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a I
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. [3] In the THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE
Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila CONSTITUTION, IN THAT:
through a more effective crime prevention program including increased police patrols. [4] The President further A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY
stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary. [5] Invoking his REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN
Marines to assist the PNP in preventing or suppressing criminal or lawless violence. [6] Finally, the President FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4),
declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a OF THE CONSTITUTION;
reasonable period only, until such time when the situation shall have improved.[7] C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM
THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows: II
xxx IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY
2. PURPOSE: MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership CONSTITUTION.[10]
in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious
threats to national security. Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the
3. SITUATION: rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized assist the PNP in law enforcement.
syndicates whose members include active and former police/military personnel whose training, skill, discipline
and firepower prove well-above the present capability of the local police alone to handle. The deployment of a Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000, required
joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his
incidence of crimes specially those perpetrated by active or former police/military personnel. Comment.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the
Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high- Marines, contending, among others, that petitioner has no legal standing; that the question of deployment of the
profile crimes especially those perpetrated by organized crime syndicates whose members include those that are Marines is not proper for judicial scrutiny since the same involves a political question; that the organization and
well-trained, disciplined and well-armed active or former PNP/Military personnel. conduct of police visibility patrols, which feature the team-up of one police officer and one Philippine Marine
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: soldier, does not violate the civilian supremacy clause in the Constitution.
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the
Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether
insurgents and other serious threat to national security, although the primary responsibility over Internal Security or not the Presidents factual determination of the necessity of calling the armed forces is subject to judicial
Operations still rests upon the AFP. review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated the constitutionalprovisions on civilian supremacy over the military and the civilian character of the PNP.
by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work
 The petition has no merit. Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of
a suit which does not satisfy the requirement of legal standing when paramount interest is involved. [16] In not a
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able
issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or to craft an issue of transcendental significance to the people.[17] Thus, when the issues raised are of paramount
excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution. importance to the public, the Court may brush aside technicalities of procedure. [18] In this case, a reading of the
petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency
established by law. problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are later.
The President did not commit grave abuse of discretion in calling out the Marines.
legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard,
When questions of constitutional significance are raised, the Court can exercise its power of judicial review the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief powers of the
only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) President as stated in Section 18, Article VII of the Constitution, specifically, the power to call out the armed
a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the
review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[12] basis for the calling of the Marines under the aforestated provision. According to the IBP, no emergency exists
The IBP has not sufficiently complied with the requisites of standing in this case. that would justify the need for the calling of the military to assist the police force. It contends that no lawless
violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court
Legal standing or locus standi has been defined as a personal and substantial interest in the case such that review the sufficiency of the factual basis for said troop [Marine] deployment.[19]
the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.
[13]
The term interest means a material interest, an interest in issue affected by the decree, as distinguished from The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the
mere interest in the question involved, or a mere incidental interest. [14] The gist of the question of standing is armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual
whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete issues which are beyond the review powers of this Court.
adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.[15] As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the
extent of judicial review. But, while this Court gives considerable weight to the parties formulation of the issues,
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of the resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the
law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of issues raised.Thus, while the parties are in agreement that the power exercised by the President is the power to
its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while call out the armed forces, the Court is of the view that the power involved may be no more than the maintenance
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is of peace and order and promotion of the general welfare. [20] For one, the realities on the ground do not show that
shared by other groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
present a specific and substantial interest in the resolution of the case. Its fundamental purpose which, under brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice
Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to improve the Irene Cortes in Marcos v. Manglapus:
administration of justice is alien to, and cannot be affected by the deployment of the Marines. It should also be
noted that the interest of the National President of the IBP who signed the petition, is his alone, absent a formal More particularly, this case calls for the exercise of the Presidents powers as protector of the
board resolution authorizing him to file the present action. To be sure, members of the BAR, those in the judiciary peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not limited merely
included, have varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the to exercising the commander-in-chief powers in times of emergency or to leading the State against external and
National President to file the petition, has not shown any specific injury which it has suffered or may suffer by internal threats to its existence.The President is not only clothed with extraordinary powers in times of
virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly represents, emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and
has sustained any form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged that ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the
any of its members has been arrested or that their civil liberties have been violated by the deployment of the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of
Marines. What the IBP projects as injurious is the supposed militarization of law enforcement which might an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief
threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only is the the enumeration of powers that follow cannot be said to exclude the Presidents exercising as Commander-in-
presumed injury not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or
requirement of standing. Since petitioner has not successfully established a direct and personal injury as a declaring martial law, in order to keep the peace, and maintain public order and security.
consequence of the questioned act, it does not possess the personality to assail the validity of the deployment of xxx[21]
the Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the armed
has sufficient stake to obtain judicial resolution of the controversy. forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a
similar result.
 Presidents wisdom or substitute its own. However, this does not prevent an examination of whether such power
We now address the Solicitor Generals argument that the issue involved is not susceptible to review by the was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave
judiciary because it involves a political question, and thus, notjusticiable. abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine
the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the Presidents
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no
review.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. evidence to support the assertion that there exist no justification for calling out the armed forces. There is,
Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases brought likewise, no evidence to support the proposition that grave abuse was committed because the power to call was
before it even in instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In
are political questions. The reason is that political questions are concerned with issues dependent upon the the performance of this Courts duty of purposeful hesitation[32] before declaring an act of another branch as
wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the
function of the separation of powers, the courts will not normally interfere with the workings of another co-equal Presidents judgment. To doubt is to sustain.
branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution.
There is a clear textual commitment under the Constitution to bestow on the President full discretionary
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the Constitution, are power to call out the armed forces and to determine the necessity for the exercise of such power. Section 18,
to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in
delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of part:
the Constitution as matters for discretionary action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr, The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
[24]
[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In
constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days,
and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.
of a kind clearly for nonjudicial discretion; or the impossibility of a courts undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual need for xxx
unquestioning adherence to a political decision already made; or the potentiality of embarassment from The full discretionary power of the President to determine the factual basis for the exercise of the calling out
multifarious pronouncements by various departments on the one question. power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:
xxx
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power shall be Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ
vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
duty of the courts of justice to settle actual controversies involving rights which are legally demandable and voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such
enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the
excess of jurisdiction on the part of any branch or instrumentality of the Government. [25] Under this definition, the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be
Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension,
problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional convene in accordance with its rules without need of a call.
boundaries has been given to this Court.[27] When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
jurisdiction on the part of the official whose action is being questioned.[28] basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
by reason of passion or hostility.[29] Under this definition, a court is without power to directly decide matters over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
which full discretionary authority has been delegated. But while this Court has no power to substitute its The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
judgment for that of Congress or of the President, it may look into the question of whether such exercise has inherent in or directly connected with invasion.
been made in grave abuse of discretion.[30] A showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
rise to justiciable controversy.[31] within three days, otherwise he shall be released.

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may
he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the
framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the revocation or review of the Presidents action to call out the armed forces. The distinction places the calling out
power in a different category from the power to declare martial law and the power to suspend the privilege of the On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three information, some of which may be classified as highly confidential or affecting the security of the state. In the
powers and provided for their revocation and review without any qualification. Expressio unius est exclusio exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to
alterius. Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to
extended to other matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that the power prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such
to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit: a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as could spill over the other parts of the country. The determination of the necessity for the calling out power if
Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be
violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised.
a graduated sequence.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to
his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of
concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, such discretion was gravely abused, the Presidents exercise of judgment deserves to be accorded respect from
when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody. this Court.

xxx The President has already determined the necessity and factual basis for calling the armed forces. In his
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings
sentence: The President may call out such armed forces to prevent or suppress lawless violence, invasion or and carnappings continue to occur in Metro Manila... [35] We do not doubt the veracity of the Presidents
rebellion. So we feel that that is sufficient for handling imminent danger. assessment of the situation, especially in the light of present developments. The Court takes judicial notice of the
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public
by the First Sentence: The President....may call out such Armed Forces to prevent or suppress lawless violence, places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we
invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of
instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the this constitutional power.
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.[34] The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the
civilian character of the police force.
The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant
the President the widest leeway and broadest discretion in using the power to call out because it is considered Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the
as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in violation
corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain of Section 3, Article II[36] of the Constitution.
basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this
Court. We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately
privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which
actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police forces
the power to call out the armed forces. The only criterion is that whenever it becomes necessary, the President are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the
may call the armed forces to prevent or suppress lawless violence, invasion or rebellion." The implication is that Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. [37] Under the
the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is their
other powers. responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical support to these soldiers. [40] In view of the foregoing, it
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of
then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount
calling out the armed forces is not easily quantifiable and cannot be objectively established since matters to an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of
considered for satisfying the same is a combination of several factors which are not always accessible to the the Constitution.[41]
courts. Besides the absence of textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged
information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the
which the President might decide that there is a need to call out the armed forces may be of a nature not aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a
constituting technical proof. civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP
Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over
the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a
appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols manner that the military personnel subjected the citizens to the exercise of military power which was regulatory,
does not destroy the civilian character of the PNP. proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four
divergent standards for assessing acceptable involvement of military personnel in civil law
Considering the above circumstances, the Marines render nothing more than assistance required in enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE
conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can there LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
be a violation of the civilian supremacy clause in the Constitution. prospectively?

It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine xxx
jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in When this concept is transplanted into the present legal context, we take it to mean that military involvement,
the implementation and execution of certain traditionally civil functions. As correctly pointed out by the Solicitor even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act
General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of
that bring both the civilian and the military together in a relationship of cooperation, are: some future injury would be insufficient. (emphasis supplied)
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43] Even if the Court were to apply the above rigid standards to the present case to determine whether there is
3. Relief and rescue operations during calamities and disasters;[44] permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the
4. Amateur sports promotion and development;[45] civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of
5. Development of the culture and the arts;[46] the Solicitor General:
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48] 3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or
8. Enforcement of customs laws;[49] compulsory military power. First, the soldiers do not control or direct the operation. This is evident from
9. Composite civilian-military law enforcement activities;[50] Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or
10. Conduct of licensure examinations;[51] condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for
11. Conduct of nationwide tests for elementary and high school students;[52] proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to
12. Anti-drug enforcement activities;[53] them, as shown in No. 8(c) [70] of Annex A, are all low impact and defensive in character. The conclusion is
13. Sanitary inspections;[54] that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a
14. Conduct of census work;[55] handful of Philippine Marines constitutes no impermissible use of military power for civilian law
15. Administration of the Civil Aeronautics Board;[56] enforcement.[71]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58] It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP
executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. [59] What we can show, which it has not, that in the deployment of the Marines, the President has violated the fundamental
have here is mutual support and cooperation between the military and civilian authorities, not derogation of law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the
civilian supremacy. Presidents determination of the factual basis for the calling of the Marines to prevent or suppress lawless
violence.
In the United States, where a long tradition of suspicion and hostility towards the use of military force for
domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for the One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has
power to call, the use of military personnel by civilian law enforcement officers is allowed under circumstances complained that his political or civil rights have been violated as a result of the deployment of the Marines. It was
similar to those surrounding the present deployment of the Philippine Marines. Under the Posse precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally prohibited, except in conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the
certain allowable circumstances. A provision of the Act states: streets, not when the shadows of violence and anarchy constantly lurk in their midst.
1385. Use of Army and Air Force as posse comitatus WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be G.R. No. 171396 May 3, 2006
fined not more than $10,000 or imprisoned not more than two years, or both.[62] PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the F.C. BOLASTIG, Petitioners,
US courts[63] apply the following standards, to wit: vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL
 GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents. opening to intensify their avowed aims to bring down the democratic Philippine State;
DECISION WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;
SANDOVAL-GUTIERREZ, J.: WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute
All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior strength a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;
– the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
the constitutional rights of the citizens, specifically their liberty. WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of
the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving - the historical enemies of the democratic Philippine State – and who are now in a tactical alliance and engaged
liberty, the scales of justice should weigh heavily against government and in favor of the poor, the in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government
oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict fundamental elected in May 2004;
rights come to the courts "with a heavy presumption against their constitutional validity."2 WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential media;
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering
committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their the growth of the economy and sabotaging the people’s confidence in the government and their faith in the future
professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom of this country;
guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to
Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a intensify their avowed aims to bring down the democratic Philippine State;
free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic
which, liberty becomes license?3 institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;
Arroyo issued PP 1017 declaring a state of national emergency, thus: WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-
in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
of the Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the
out (the) armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their Commander-in- Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed
Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of
the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or terrorism and lawless violence in the country;
rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP
hereby declare a State of National Emergency. and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
She cited the following facts as bases:
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:
of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical alliance WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No.
and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted 1017 dated February 24, 2006, was issued declaring a state of national emergency;
Government elected in May 2004; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis
of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP),
WHEREAS, these conspirators have repeatedly tried to bring down the President; were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the violence as well as any act of rebellion and to undertake such action as may be necessary;
national media; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and
WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering rebellion;
the growth of the economy and sabotaging the people’s confidence in government and their faith in the
future of this country; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue
WHEREAS, these actions are adversely affecting the economy; of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim
cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
New People’s Army (NPA), and some members of the political opposition in a plot to unseat or assassinate
President Arroyo.4 They considered the aim to oust or assassinate the President and take-over the reigns of Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
government as a clear and present danger. establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka
Roger" Rosal declared: "The Communist Party and revolutionary movement and the entire people look forward
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of
issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels. rendering it to weaken and unable to rule that it will not take much longer to end it."9

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central
President in determining the necessity of calling out the armed forces. He emphasized that none of the Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened
petitioners has shown that PP 1017 was without factual bases. While he explained that it is not respondents’ task by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake
to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated counter-insurgency operations in the field." He claimed that with the forces of the national democratic movement,
hereunder, for the elucidation of the issues. the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June
2005, it is probable that the President’s ouster is nearing its concluding stage in the first half of 2006.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan
and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan
cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an
costs. They called upon the people to "show and proclaim our displeasure at the sham regime. Let us army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist
demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from
arms." 5 the provinces in mass protests.10

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to
bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to
to assassinate selected targets including some cabinet members and President Arroyo herself. 6 Upon the advice account for all their men and ensure that the chain of command remains solid and undivided. To protect the
of her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the young students from any possible trouble that might break loose on the streets, the President suspended classes
celebration, a bomb was found and detonated at the PMA parade ground. in all levels in the entire National Capital Region.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Immediately, the Office of the President announced the cancellation of all programs and activities related to the
Group and the National People’s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the
subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind
would be on February 24, 2006, the 20th Anniversary of Edsa I." were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including media, can already be implemented."11
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters
Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-
Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public statement: "All SAF units KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those
are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-
loyalty." trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used against the protesters
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother, marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas
Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official Street in Makati City.12
about his group’s plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their
identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems assemblies.
go for the planned movement against Arroyo."8
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff professor at the University of the Philippines and newspaper columnist. Also arrested was his companion,
of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a Ronald Llamas, president of party-list Akbayan.
critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection
the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila.
The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and
issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of of assembly.
the newspaper; while policemen from the Manila Police District were stationed outside the building.13
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that
another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. the term "emergency" refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the rebels in bringing down this government." The In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21)
PNP warned that it would take over any media organization that would not follow "standards set by the other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano,
government during the state of national emergency." Director General Lomibao stated that "if they do not follow Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
the standards – and the standards are - if they would contribute to instability in the government, or if they do not "usurpation of legislative powers"; "violation of freedom of expression" and "a declaration of martial law." They
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National alleged that President Arroyo "gravely abused her discretion in calling out the armed forces without clear and
Telecommunications’ Commissioner Ronald Solis urged television and radio networks to "cooperate" with the verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so."
government for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are
his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their
coverage when the national security is threatened.14 issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party
and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
warrant for his arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed from a case of unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.
any of these petitions.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of
admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were Martial Law, petitioners argued that "it amounts to an exercise by the President of emergency powers without
dispersed by the police. congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and function of
a proclamation as defined under the Revised Administrative Code."
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at
the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are
"unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his the press and the right to access to information on matters of public concern, all guaranteed under Article III,
wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite. Section 4 of the 1987 Constitution." In this regard, she stated that these issuances prevented her from fully
prosecuting her election protest pending before the Presidential Electoral Tribunal.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be
Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et
House of Representatives where the "Batasan 5" decided to stay indefinitely. al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur and fifth, PP 1017 does not violate the people’s right to free expression and redress of grievances.
Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues
to exist. which may be summarized as follows:

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed A. PROCEDURAL:
with this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo 1) Whether the issuance of PP 1021 renders the petitions moot and academic.
as respondent. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal standing.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches B. SUBSTANTIVE:
on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the 1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
 a. Facial Challenge question that the issues being raised affect the public’s interest, involving as they do the people’s basic rights to
b. Constitutional Basis freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and
c. As Applied Challenge controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the
bar, and in the present petitions, the military and the police, on the extent of the protection given by
A. PROCEDURAL constitutional guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the
First, we must resolve the procedural roadblocks. petitions are subject to judicial review.

I- Moot and Academic Principle In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
One of the greatest contributions of the American system to this country is the concept of judicial review Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account
enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation -- the Chief Justice’s very statement that an otherwise "moot" case may still be decided "provided the party raising
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance." The
confers limited powers on the national government. x x x If the government consciously or unconsciously present case falls right within this exception to the mootness rule pointed out by the Chief Justice.
oversteps these limitations there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed II- Legal Standing
in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more
judicial review.22 than passing discussion on legal standing or locus standi.

But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts may exercise Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private suits,
such power only when the following requisites are present: first, there must be an actual case or standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of
controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of
must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or
necessary to the determination of the case itself.24 injured by the judgment in the suit or the party entitled to the avails of the suit. "38 Succinctly put, the
plaintiff’s standing is based on his own right to the relief sought.
Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion
thereon. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial person who is affected no differently from any other person. He could be suing as a "stranger," or in the category
resolution. It is "definite and concrete, touching the legal relations of parties having adverse legal interest;" a real of a "citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled to seek judicial
and substantial controversy admitting of specific relief.25 The Solicitor General refutes the existence of such protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the
actual case or controversy, contending that the present petitions were rendered "moot and academic" by securing of relief as a "citizen" or "taxpayer.
President Arroyo’s issuance of PP 1021.
Such contention lacks merit. Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction
was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of
events,26so that a declaration thereon would be of no practical use or value. 27 Generally, courts decline public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New
jurisdiction over such case28 or dismiss it on ground of mootness.29 York Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people
are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and public offence be properly pursued and punished, and that a public grievance be remedied." With respect
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify courts to restrain the unlawful use of public funds to his injury cannot be denied."
these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be However, to prevent just about any person from seeking judicial interference in any official policy or act with
stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the
protection; it is in legal contemplation, inoperative."30 United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed
in Tileston v. Ullman.43 The same Court ruled that for a private individual to invoke the judicial power to determine
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in the validity of an executive or legislative action, he must show that he has sustained a direct injury as a
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the result of that action, and it is not sufficient that he has a general interest common to all members of the
Constitution;31second, the exceptional character of the situation and the paramount public interest is public.
involved;32 third, when constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public;33and fourth, the case is capable of repetition yet evading review.34 This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who
impugns the validity of a statute must have "a personal and substantial interest in the case such that he has
All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers’ Association v. De la Fuente,46 Pascual v. In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress
Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48 have standing to sue, as they claim that the President’s declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido
However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with
the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. the LDP in Lacson.
Dinglasan,49 where the "transcendental importance" of the cases prompted the Court to act liberally. Such
liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the issues Now, the application of the above principles to the present petitions.
raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement that The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same
petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions "direct injury" resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP
involving the constitutionality or validity of laws, regulations and rulings.51 1017. Rightly so, the Solicitor General does not question their legal standing.

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also
been allowed to sue under the principle of "transcendental importance." Pertinent are the following cases: raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers
(1) Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement of the incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
constitutional right to information and the equitable diffusion of natural resources are matters of represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic
transcendental importance which clothe the petitioner with locus standi; rights.
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga
suit to prosper despite the lack of direct injury to the parties seeking judicial review" of the Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc.
Visiting Forces Agreement; v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Tañada v.
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an
capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing interest in the execution of the laws.
or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases
of transcendental importance, the cases must be settled promptly and definitely and standing In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be
requirements may be relaxed. deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of
their members.65 We take judicial notice of the announcement by the Office of the President banning all rallies
By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.
concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements
are met: In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines
(1) the cases involve constitutional issues; (IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar
is unconstitutional; of the Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its duty to preserve the rule
(3) for voters, there must be a showing of obvious interest in the validity of the election law in question; of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
(4) for concerned citizens, there must be a showing that the issues raised are of transcendental general an interest which is shared by other groups and the whole citizenry. However, in view of the
importance which must be settled early; and transcendental importance of the issue, this Court declares that petitioner have locus standi.
(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators. In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence.
Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization does not by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was
give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not no showing that the enforcement of these issuances prevented her from pursuing her occupation. Her
raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the considering once more the transcendental importance of the issue involved, this Court may relax the standing
"direct injury" test with respect to concerned citizens’ cases involving constitutional issues. It held that "there rules.
must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged
illegal official act." It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with
bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP
1017 cases."1avvphil.net As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that "judicial
inquiry can go no further than to satisfy the Court not that the President’s decision is correct," but that "the
This Court holds that all the petitioners herein have locus standi. President did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. 83 In Integrated
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the
during his tenure of office or actual incumbency,67 may not be sued in any civil or criminal case, and there is no President’s decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his
need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."
Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally
performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a
executive branch and anything which impairs his usefulness in the discharge of the many great and important detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the
duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist
the people68 but he may be removed from office only in the mode provided by law and that is by impeachment.69 leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such
B. SUBSTANTIVE events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing
I. Review of Factual Bases PP 1017 calling for military aid.
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to
issue such Proclamation. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and
do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the
The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in- exercise of such power or duty must not stifle liberty.
Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v.
Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The II. Constitutionality of PP 1017 and G.O. No. 5
tug-of-war always cuts across the line defining "political questions," particularly those questions "in regard to Doctrines of Several Political Theorists
which full discretionary authority has been delegated to the legislative or executive branch of the on the Power of the President in Times of Emergency
government."75 Barcelon and Montenegro were in unison in declaring that the authority to decide whether an This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at
exigency has arisen belongs to the President and his decision is final and conclusive on the the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion.
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to
the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional cope with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature
sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In
balances, "under which the President is supreme, x x x only if and when he acts within the sphere these situations, the Crown retained a prerogative "power to act according to discretion for the public good,
allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested without the proscription of the law and sometimes even against it."84 But Locke recognized that this moral
in the Judicial Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. 78 Then people have no other remedy in this, as in all other cases where they have no judge on earth, but to
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the appeal to Heaven."85
latter case, ratiocinating that "in times of war or national emergency, the President must be given absolute
control for the very life of the nation and the government is in great peril. The President, it intoned, is Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
answerable only to his conscience, the People, and God."79 government in time of emergency. According to him:
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at bar -- echoed The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain
a principle similar to Lansang. While the Court considered the President’s "calling-out" power as a discretionary cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State…
power solely vested in his wisdom, it stressed that "this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised in a manner It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their
constituting grave abuse of discretion."This ruling is mainly a result of the Court’s reliance on Section 1, operation. Even Sparta allowed its law to lapse...
Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new definition of judicial power, the courts are If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is
authorized not only "to settle actual controversies involving rights which are legally demandable and to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority.
enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting In such a case, there is no doubt about the general will, and it clear that the people’s first intention is that the
to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." The State shall not perish.86
latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what
was before a forbidden territory, to wit, the discretion of the political departments of the government. 81 It speaks
of judicial prerogative not only in terms of power but also of duty.82
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For 3) No government should initiate a constitutional dictatorship without making specific provisions for its
him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." termination…
Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship.87 4) …all uses of emergency powers and all readjustments in the organization of the government should
be effected in pursuit of constitutional or legal requirements…
John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in 5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any
cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship."88 more than is absolutely necessary for the conquest of the particular crisis . . .
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government, 6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this permanent in character or effect…
chasm in democratic political theory, thus: 7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .
Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures; for 8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship.
although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established ..
for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no 9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never
republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency be in the hands of the man or men who constitute the dictator. . .
and fixed rules for applying it.89 10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted…
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized 11) …the termination of the crisis must be followed by a complete return as possible to the political and
system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. governmental conditions existing prior to the initiation of the constitutional dictatorship…99
He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional restraints.90 Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an
Contemporary political theorists, addressing themselves to the problem of response to emergency by emergency, and he places great faith in the effectiveness of congressional investigating committees.100
constitutional democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick M. Watkins saw
"no reason why absolutism should not be used as a means for the defense of liberal institutions ," Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying
provided it "serves to protect established institutions from the danger of permanent injury in a period of that, "the suggestion that democracies surrender the control of government to an authoritarian ruler in
temporary emergency and is followed by a prompt return to the previous forms of political life ."92 He time of grave danger to the nation is not based upon sound constitutional theory." To appraise emergency
recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It
governance: increasing administrative powers of the executive, while at the same time "imposing matters not whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
limitation upon that power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are employed to embrace all chief executives administering emergency powers. However used, "constitutional
the conditions of success of such a dictatorship: "The period of dictatorship must be relatively short… dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus,
Dictatorship should always be strictly legitimate in character…Final authority to determine the need for they favored instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
dictatorship in any given case must never rest with the dictator himself…"94 and the objective of such an
emergency dictatorship should be "strict political conservatism." A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and
which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power – any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full
in a government where power has consciously been divided – to cope with… situations of unprecedented emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the
magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted
shall exercise such powers, when, for how long, and to what end." 96 Friedrich, too, offered criteria for judging the that the historical and proper test of constitutionalism was the existence of adequate processes for
adequacy of any of scheme of emergency powers, to wit: "The emergency executive must be appointed by keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by
constitutional means – i.e., he must be legitimate; he should not enjoy power to determine the existence an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He
of an emergency; emergency powers should be exercised under a strict time limitation; and last, the found that the really effective checks on despotism have consisted not in the weakening of government but, but
objective of emergency action must be the defense of the constitutional order."97 rather in the limiting of it; between which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government, McIlwain meant government
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, limited to the orderly procedure of law as opposed to the processes of force. The two fundamental
Weimar, Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits
solution to the vexing problems presented by emergency.98 Like Watkins and Friedrich, he stated a priori the to arbitrary power and a complete political responsibility of government to the governed.101
conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s "theory
necessary or even indispensable to the preservation of the State and its constitutional order… of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of
2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or constitutionalism" --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting
men who will constitute the dictator… increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and checks.
 unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
of Justice Jackson’s "balanced power structure."102 Executive, legislative, and judicial powers are dispersed to their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so
none has the monopoly of power in times of emergency. Each branch is given a role to serve as that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The
limitation or check upon the other. This system does not weaken the President, it just limits his power, using factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;"
the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it that an overbroad law’s "very existence may cause others not before the court to refrain from constitutionally
obliges him to operate within carefully prescribed procedural limitations. protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech
of those third parties.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and
encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or
"chilling effect" to the citizens. prediction that its very existence may cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris,109 it was held that:
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
in free speech cases, also known under the American Law as First Amendment cases.103 deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
Salerno,104the US Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine outside the questions, whichever way they might be decided.
limited context of the First Amendment" (freedom of speech).
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully,
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state since the challenger must establish that there can be no instance when the assailed law may be valid. Here,
interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, petitioners did not even attempt to show whether this situation exists.
lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,105 it was held: Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially
‘such summary action’ is inappropriate. But the plain import of our cases is, at the very least, that facial invalid if men of common intelligence must necessarily guess at its meaning and differ as to its
overbreadth adjudication is an exception to our traditional rules of practice and that its function, a application."110 It is subject to the same principles governing overbreadth doctrine. For one, it is also an
limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to analytical tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said that a
sanction moves from ‘pure speech’ toward conduct and that conduct –even if expressive – falls within litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners
the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that
comprehensive controls over harmful, constitutionally unprotected conduct. men of common intelligence cannot understand the meaning and application of PP 1017.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to b. Constitutional Basis of PP 1017
regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed Now on the constitutional foundation of PP 1017.
when invoked against ordinary criminal laws that are sought to be applied to protected conduct ."106 Here, The operative portion of PP 1017 may be divided into three important provisions, thus:
the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is First provision:
manifestly subject to state regulation. "by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and violence as well any act of insurrection or rebellion"
only as a last resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the Second provision:
traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied "and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, personally or upon my direction;"
i.e., in other situations not before the Court.108 A writer and scholar in Constitutional Law explains further: Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111 this Court,
through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows: President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII
invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion.
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part She also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-
thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may not written, as in the case of Sanlakas.
revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so.
period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, her calling-out power.
convene in accordance with its rules without need of a call.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon
bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of
and must promulgate its decision thereon within thirty days from its filing. order and the enforcement of law."113

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V.
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over Mendoza,114an authority in constitutional law, said that of the three powers of the President as Commander-in-
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine
which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to
inherent in or directly connected with invasion. restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
within three days, otherwise he shall be released. courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least
benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the
power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts
criterion for the exercise of the calling-out power is that "whenever it becomes necessary," the President may that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its
call the armed forces "to prevent or suppress lawless violence, invasion or rebellion." Are these conditions nature and scope, and any act done contrary to its command is ultra vires.
present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo
found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on
determine the actual condition of the country. public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where
Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.
violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an
President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or
the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There suppressing lawless violence.
lies the wisdom of our Constitution, the greater the power, the greater are the limitations.
Second Provision: "Take Care" Power
It is pertinent to state, however, that there is a distinction between the President’s authority to declare a "state of The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is
rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s based on Section 17, Article VII which reads:
authority to declare a "state of rebellion" emanates from her powers as Chief Executive, the statutory authority SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: ensure that the laws be faithfully executed.
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment
or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be As the Executive in whom the executive power is vested,115 the primary function of the President is to enforce the
promulgated in proclamations which shall have the force of an executive order. laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by
the officials and employees of his department. Before assuming office, he is required to take an oath or President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to
affirmation to the effect that as President of the Philippines, he will, among others, "execute its laws." 116 In the those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same
exercise of such function, the President, if needed, may employ the powers attached to his office as the category and binding force as statutes because they were issued by the President in the exercise of his
Commander-in-Chief of all the armed forces of the country,117 including the Philippine National Police118 under the legislative power during the period of Martial Law under the 1973 Constitution.121
Department of Interior and Local Government.119
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature.
Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Section 1, Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the
Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests Philippines which shall consist of a Senate and a House of Representatives." To be sure, neither Martial
the power to enact laws in Congress. They assail the clause "to enforce obedience to all the laws and to all Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power
decrees, orders and regulations promulgated by me personally or upon my direction." by issuing decrees.

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted 120 from Can President Arroyo enforce obedience to all decrees and laws through the military?
Former President Marcos’ Proclamation No. 1081, which partly reads: As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are
void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations
upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to
defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in- suppress lawless violence.
Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or Third Provision: Power to Take Over
rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by The pertinent provision of PP 1017 states:
me personally or upon my direction. x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause declare a state of national emergency.
states: "to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can
Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to
me personally or upon my direction." the provision of Section 17, Article XII which reads:

Is it within the domain of President Arroyo to promulgate "decrees"? Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any
or upon my direction." privately-owned public utility or business affected with public interest.

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?
(Administrative Code of 1987). She may issue any of the following: The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the
President, without any authority or delegation from Congress, to take over or direct the operation of any privately-
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in owned public utility or business affected with public interest.
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. Constitutional Convention.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment dated September 22, 1972 instructing the Secretary of National Defense to take over "the management, control
or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National
promulgated in proclamations which shall have the force of an executive order. Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and
temporary interest which only concern a particular officer or office of the Government shall be embodied in end the present national emergency."
memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of
President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.
Government, for information or compliance, shall be embodied in memorandum circulars. This is an area that needs delineation.
Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines shall be issued as general or special orders. A distinction must be drawn between the President’s authority to declare "a state of national emergency" and
to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the
President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he "shall be Commander-
constitutional issues arise. in-Chief of the Army and Navy of the United States.

Section 23, Article VI of the Constitution reads: The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in
shall have the sole power to declare the existence of a state of war. military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as
carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall such to take possession of private property in order to keep labor disputes from stopping production.
cease upon the next adjournment thereof. This is a job for the nation’s lawmakers, not for its military authorities.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to " other Nor can the seizure order be sustained because of the several constitutional provisions that grant
national emergency." If the intention of the Framers of our Constitution was to withhold from the President the executive power to the President. In the framework of our Constitution, the President’s power to see that
authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his
grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws
provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the
a "state of national emergency." The logical conclusion then is that President Arroyo could validly declare the President is to execute. The first section of the first article says that "All legislative Powers herein
existence of a state of national emergency even in the absence of a Congressional enactment. granted shall be vested in a Congress of the United States. . ."126

But the exercise of emergency powers, such as the taking over of privately owned public utility or business Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to
affected with public interest, is a different matter. This requires a delegation from Congress. "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency."

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing
stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements
construed together and considered in the light of each other. 123 Considering that Section 17 of Article XII and of intensity, variety, and perception.127 Emergencies, as perceived by legislature or executive in the United Sates
Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal
determine the limitation of the exercise of emergency powers. heads: a)economic,128 b) natural disaster,129 and c) national security.130

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), "Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic
Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or
not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for effect.131 This is evident in the Records of the Constitutional Commission, thus:
Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus: MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in Section 13,
(1) There must be a war or other emergency. page 5? It reads:
(2) The delegation must be for a limited period only. When the common good so requires, the State may temporarily take over or direct the operation of any privately
(3) The delegation must be subject to such restrictions as the Congress may prescribe. owned public utility or business affected with public interest.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124 MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
private business affected with public interest is just another facet of the emergency powers generally reposed MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.132
upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under xxxxxx
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could
public utility or business affected with public interest," it refers to Congress, not the President. Now, whether this be economic emergency?"
or not the President may exercise such power is dependent on whether Congress may delegate it to him MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. MR. TINGSON. Thank you very much.133
Sawyer,125 held: It may be argued that when there is national emergency, Congress may not be able to convene and, therefore,
unable to delegate to the President the power to take over privately-owned public utility or business affected with
It is clear that if the President had authority to issue the order he did, it must be found in some provision of the public interest.
Constitution. And it is not claimed that express constitutional language grants this power to the President. The In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures
contention is that presidential power should be implied from the aggregate of his powers under the Constitution. are exercised, remains in Congress even in times of crisis.
Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a "x x x
After all the criticisms that have been made against the efficiency of the system of the separation of powers, the Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
fact remains that the Constitution has set up this form of government, with all its defects and shortcomings, in misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a
preference to the commingling of powers in one man or group of men. The Filipino people by adopting statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end
parliamentary government have given notice that they share the faith of other democracy-loving peoples in this desired, not from its effects in a particular case.137 PP 1017 is merely an invocation of the President’s calling-
system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or
for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is
States, the basic features of whose Constitution have been copied in ours, have specific functions of the nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the
legislative branch of enacting laws been surrendered to another department – unless we regard as legislating the citizens’ constitutional rights.
carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed
under our concept of constitutional government, in times of extreme perils more than in normal circumstances illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is
‘the various branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform the the essential basis for the exercise of power, and not a mere incidental result arising from its
duties and discharge the responsibilities committed to them respectively." exertion.138 This is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional
just because the officers implementing them have acted arbitrarily. If this were so, judging from the blunders
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal
rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the Code would have been declared unconstitutional a long time ago.
operation of any privately owned public utility or business affected with public interest without authority from
Congress. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and
commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They
Let it be emphasized that while the President alone can declare a state of national emergency, however, without are internal rules issued by the executive officer to his subordinates precisely for
legislation, he has no power to take over privately-owned public utility or business affected with public interest. the proper and efficientadministration of law. Such rules and regulations create no relation except between
The President cannot decide whether exceptional circumstances exist warranting the take over of privately- the official who issues them and the official who receives them. 139 They are based on and are the product of, a
owned public utility or business affected with public interest. Nor can he determine when such exceptional relationship in which power is their source, and obedience, their object.140 For these reasons, one requirement for
circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of these rules to be valid is that they must be reasonable, not arbitrary or capricious.
businesses affected with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions
powers act passed by Congress. and measures to suppress and prevent acts of terrorism and lawless violence."

c. "AS APPLIED CHALLENGE" Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous
the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.
many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the
right against warrantless arrest; and the freedom of speech, of expression, of the press, and of In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our
assembly under the Bill of Rights suffered the greatest blow. country, but the international community as well. The following observations are quite apropos:

Of the seven (7) petitions, three (3) indicate "direct injury." In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without slogans when it comes to the justification of the use of force against certain states and against groups operating
warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being
PP 1017 as basis of the arrest. updated according to criteria that are not always known to the public, but are clearly determined by strategic
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, interests.
2006, the CIDG operatives "raided and ransacked without warrant" their office. Three policemen were assigned
to guard their office as a possible "source of destabilization." Again, the basis was PP 1017. The basic problem underlying all these military actions – or threats of the use of force as the most recent by the
United States against Iraq – consists in the absence of an agreed definition of terrorism.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away
and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed
Power I. groups such as liberation movements, or by individuals.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter." The
the implementation, pursuant to G.O. No. 5, of PP 1017. apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by
the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists
general, does the illegal implementation of a law render it unconstitutional? by those who controlled the territory at the time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by
eventually legitimate acts of national resistance or self-defense? President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since
there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions.
the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
the gap between those who associate "terrorism" with any violent act by non-state groups against civilians, state over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the
functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out
of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court
groups within a state is concerned. declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.

The dilemma facing the international community can best be illustrated by reference to the contradicting Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what
categorization of organizations and movements such as Palestine Liberation Organization (PLO) – which is a are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in
terrorist group for Israel and a liberation movement for Arabs and Muslims – the Kashmiri resistance groups – pursuing the Order. Otherwise, such acts are considered illegal.
who are terrorists in the perception of India, liberation fighters in that of Pakistan – the earlier Contras in
Nicaragua – freedom fighters for the United States, terrorists for the Socialist camp – or, most drastically, the We first examine G.R. No. 171396 (David et al.)
Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects
go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way – against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no
because of opposing political interests that are at the roots of those perceptions. search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same particularly describing the place to be searched and the persons or things to be seized." 142 The plain import of the
group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized
divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is
rival, or adversary, of an occupying power in a given territory, the definition of terrorism will "fluctuate" that between person and police must stand the protective authority of a magistrate clothed with power to issue or
accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its refuse to issue search warrants or warrants of arrest.143
territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group
are concerned, and vice-versa. In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp
The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he
because of these conflicting interests of sovereign states that determine in each and every instance how a was treated brusquely by policemen who "held his head and tried to push him" inside an unmarked car; fifth, he
particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. was charged with Violation of Batas Pambansa Bilang No. 880 145 and Inciting to Sedition; sixth, he was
A "policy of double standards" on this vital issue of international affairs has been the unavoidable consequence. detained for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.

This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in spite of Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
the emphasis in the Preamble to the United Nations Charter! – has become even more serious in the present Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant,
global power constellation: one superpower exercises the decisive role in the Security Council, former great arrest a person:
powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has (a) When, in his presence, the person to be arrested has committed, is actually committing, or is
become even more acute since the terrorist attacks of 11 September 2001 I the United States.141 attempting to commit an offense.
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or (b) When an offense has just been committed and he has probable cause to believe based on personal
military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the knowledge of facts or circumstances that the person to be arrested has committed it; and
police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. x x x.
Obviously, this is abuse and oppression on their part. It must be remembered that an act can only be considered
a crime if there is a law defining the same as such and imposing the corresponding penalty thereon. Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the
inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and
enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws their erroneous assumption that petitioner David was the leader of the rally. 146 Consequently, the Inquest
on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations." The word Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner
"terrorism" is mentioned in the following provision: "That one who conspires with any other person for the David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him
purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of
punished by reclusion temporal x x x." BP 880 as it was not even known whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the
arrest violated, but also their right to peaceably assemble. press. Petitioners’ narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without warrant;second, the police operatives seized
Section 4 of Article III guarantees: several materials for publication; third, the search was conducted at about 1:00 o’ clock in the morning of
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except
peaceably to assemble and petition the government for redress of grievances. the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public
affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was
case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell media outlets not to
and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights connive or do anything that would help the rebels in bringing down this government." Director General
embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It Lomibao further stated that "if they do not follow the standards –and the standards are if they would
may not be conditioned upon the prior issuance of a permit or authorization from the government authorities contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5
except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald
not for the assembly itself, may be validly required. Solis urged television and radio networks to "cooperate" with the government for the duration of the state of
national emergency. He warned that his agency will not hesitate to recommend the closure of any
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to broadcast outfit that violates rules set out for media coverage during times when the national security is
peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present threatened.151
danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting
to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct
argument, failed to justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection
assembly cannot be made a crime, thus: with one specific offence to be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable any other premise be made in the presence of the lawful occupant thereof or any member of his family or in
political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the
is not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it
speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution be served at any time of the day or night. All these rules were violated by the CIDG operatives.
protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic
valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff 152 this Court held that
seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a --
criminal charge. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and
the "We Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of and sealed, with the further result that the printing and publication of said newspapers were
KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of discontinued.
Malacañang’s directive canceling all permits previously issued by local government units. This is arbitrary. The Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
wholesale cancellation of all permits to rally is a blatant disregard of the principle that "freedom of assembly is guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
not to be limited, much less denied, except on a showing of a clear and present danger of a substantive themselves in print. This state of being is patently anathematic to a democratic framework where a free,
evil that the State has a right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a alert and even militant press is essential for the political enlightenment and growth of the citizenry.
showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to
exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum"
to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement
protected and unprotected assemblies was eliminated. duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The
Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do
units. They have the power to issue permits and to revoke such permits after due notice and hearing on the so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to
determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-
the revocation of their permits.150 The first time they learned of it was at the time of the dispersal. Such absence government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves
of notice is a fatal defect. When a person’s right is restricted by government action, it behooves a democratic the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a
government to see to it that the restriction is fair, reasonable, and according to procedure. representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always be obsta principiis.154
 In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an
Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s offices and integral part of this ponencia.
the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible "for
any purpose," thus: SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally
JUSTICE CALLEJO: rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed
You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again
purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed
admission of the admissibility of these clippings that were taken from the Tribune? "if the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues raised by the parties
SOLICITOR GENERAL BENIPAYO: should not be "evaded;" they must now be resolved to prevent future constitutional aberration.
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.155 The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the
xxxxxxxxx AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the
SR. ASSO. JUSTICE PUNO: Constitution and the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving
These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all
So why do you have to go there at 1 o’clock in the morning and without any search warrant? Did they become laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to
suddenly part of the evidence of rebellion or inciting to sedition or what? impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
SOLGEN BENIPAYO: Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a
Well, it was the police that did that, Your Honor. Not upon my instructions. legislation, cannot take over privately-owned public utility and private business affected with public interest.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as
Proclamation 1017. Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it
SOLGEN BENIPAYO: also provides a valid standard – that the military and the police should take only the " necessary and
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police appropriate actions and measures to suppress and prevent acts of lawless violence."But the words "acts
could go and inspect and gather clippings from Daily Tribune or any other newspaper. of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and should
SR. ASSO. JUSTICE PUNO: thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law
Is it based on any law? has been enacted to guide the military, and eventually the courts, to determine the limits of the AFP’s authority in
SOLGEN BENIPAYO: carrying out this portion of G.O. No. 5.
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO: On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless
So, it has no basis, no legal basis whatsoever? arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
SOLGEN BENIPAYO: the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not press; and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for
condone this. If the people who have been injured by this would want to sue them, they can sue and publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by
there are remedies for this.156 the valid provisions of PP 1017 and G.O. No. 5.
Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on
illegal and cannot be condoned, thus: the individual police officers concerned. They have not been individually identified and given their day in court.
CHIEF JUSTICE PANGANIBAN: The civil complaints or causes of action and/or relevant criminal Informations have not been presented before
There seems to be some confusions if not contradiction in your theory. this Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or
SOLICITOR GENERAL BENIPAYO: administrative liabilities.
I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of
1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the It is well to remember that military power is a means to an end and substantive civil rights are ends in
law. These are acts of the police officers, that is their responsibility.157 themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency,
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to
in no constitutional or statutory breaches if applied according to their letter." unduly restrain our people’s liberty.

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the
military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political
pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens’ rights under the responsibility of the government to the governed.158
Constitution, this Court has to declare such acts unconstitutional and illegal.
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well
as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP
1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take over privately-owned public utility or business affected
with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement
PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by
the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU
and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing
acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and
whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.
SO ORDERED.

G.R. No. 187298 July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, and SPO1
SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN, COL. EUGENIO
CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G. LATAG, in their capacity as
officers of the Phil. Marines and Phil. National Police, respectively, Respondents.
DECISION

SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross (ICRC) were kidnapped
in the vicinity of the Provincial Capitol in Patikul, Sulu.1 Andres Notter, a Swiss national and head of the ICRC in
Zamboanga City, Eugenio Vagni, an Italian national and ICRC delegate, and Marie Jean Lacaba, a Filipino
engineer, were purportedly inspecting a water and sanitation project for the Sulu Provincial Jail when inspecting
a water and sanitation project for the Sulu Provincial Jail when they were seized by three armed men who were
later confirmed to be members of the Abu Sayyaf Group (ASG). 2 The leader of the alleged kidnappers was
identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad, On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring a
one of the known leaders of the Abu Sayyaf. state of emergency in the province of Sulu. 13 It cited the kidnapping incident as a ground for the said declaration,
describing it as a terrorist act pursuant to the Human Security
On 21 January 2009, a task force was created by the ICRC and the Philippine National Police (PNP), which then
organized a parallel local group known as the Local Crisis Committee. 3 The local group, later renamed Sulu Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which bestows
Crisis Management Committee, convened under the leadership of respondent Abdusakur Mahail Tan, the on the Provincial Governor the power to carry out emergency measures during man-made and natural disasters
Provincial Governor of Sulu. Its armed forces component was headed by respondents General Juancho Saban, and calamities, and to call upon the appropriate national law enforcement agencies to suppress disorder and
and his deputy, Colonel Eugenio Clemen. The PNP component was headed by respondent Police lawless violence.
Superintendent Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous Region of
Muslim Mindanao (ARMM).4 In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints and
chokepoints, conduct general search and seizures including arrests, and other actions necessary to ensure
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians coming from public safety. The pertinent portion of the proclamation states:
different municipalities, who were redeployed to surrounding areas of Patikul. 5 The organization of the CEF was
embodied in a "Memorandum of Understanding"6 entered into NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN,
GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE
between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed Forces of the PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE
Philippines, represented by Gen. Saban; and the Philippine National Police, represented by P/SUPT. Latag. The ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE
Whereas clauses of the Memorandum alluded to the extraordinary situation in Sulu, and the willingness of FOLLOWING:
civilian supporters of the municipal mayors to offer their services in order that "the early and safe rescue of the 1. The setting-up of checkpoints and chokepoints in the province;
hostages may be achieved."7 2. The imposition of curfew for the entire province subject to such Guidelines as may be issued
by proper authorities;
This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities of each of the 3. The conduct of General Search and Seizure including arrests in the pursuit of the
party signatories, as follows: kidnappers and their supporters; and
Responsibilities of the Provincial Government: 4. To conduct such other actions or police operations as may be necessary to ensure public
1) The Provincial Government shall source the funds and logistics needed for the activation of the CEF; safety.
2) The Provincial Government shall identify the Local Government Units which shall participate in the
operations and to propose them for the approval of the parties to this agreement; DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
3) The Provincial Government shall ensure that there will be no unilateral action(s) by the CEF without 31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
the knowledge and approval by both parties.
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT. Julasirim
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC): Kasim.15 Upon arriving at the police station, he was booked, and interviewed about his relationship to Musin,
1) The AFP/PNP shall remain the authority as prescribed by law in military operations and law Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that he was indeed related to the three,
enforcement; he was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their assigned Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney
task(s); driver Abduhadi Sabdani, were also arrested.16 The affidavit17 of the apprehending officer alleged that they were
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of operation(s); suspected ASG supporters and were being arrested under Proclamation 1-09. The following day, 2 April 2009,
4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the course of the hostage Mary Jane Lacaba was released by the ASG.
operation(s)/movements of the CEF.8 On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the "Guidelines for the
Implementation of Proclamation No. 1, Series of 2009 Declaring a State of Emergency in the Province of
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government, announced to Sulu."18These Guidelines suspended all Permits to Carry
the media that government troops had cornered some one hundred and twenty (120) Abu Sayyaf members along
with the three (3) hostages.9 However, the ASG made Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to seek
exemption from the gun ban only by applying to the Office of the Governor and obtaining the appropriate
contact with the authorities and demanded that the military pull its troops back from the jungle area. 10 The identification cards. The said guidelines also allowed general searches and seizures in designated checkpoints
government troops yielded and went back to their barracks; the Philippine Marines withdrew to their camp, while and chokepoints.
police and civilian forces pulled back from the terrorists’ stronghold by ten (10) to fifteen (15) kilometers.
Threatening that one of the hostages will be beheaded, the ASG further demanded the evacuation of the military On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan Awadi, and
camps and bases in the different barangays in Jolo. 11 The authorities were given no later than 2:00 o’clock in the SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for Certiorari and
afternoon of 31 March 2009 to comply.12 Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse of discretion amounting to lack or
excess of jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of the 1987
Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra vires, and thus rule. The Court would be remiss in its constitutional duties were it to dismiss the present petition solely due to
null and void, for violating Sections 1 and 18, Article VII of the Constitution, which grants the President sole claims of judicial hierarchy.
authority to exercise emergency powers and calling-out powers as the chief executive of the Republic and
commander-in-chief of the armed forces. 20 Additionally, petitioners claim that the Provincial Governor is not In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance involved in cases that
authorized by any law to create civilian armed forces under his command, nor regulate and limit the issuances of concern restrictive custody, because judicial review in these cases serves as "a manifestation of the crucial
PTCFORs to his own private army. defense of civilians ‘in police power’ cases due to the diminution of their basic liberties under the guise of a state
of emergency."30 Otherwise, the importance of the high tribunal as the court of last resort would be put to naught,
In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of courts when they considering the nature of "emergency" cases, wherein the proclamations and issuances are inherently short-
filed the instant petition directly in the court of last resort, even if both the Court of Appeals (CA) and the Regional lived. In finally disposing of the claim that the issue had become moot and academic, the Court also cited
Trial Courts (RTC) possessed concurrent jurisdiction with the Supreme Court under Rule 65.21 This is the only transcendental public importance as an exception, stating:
procedural defense raised by respondent Tan. Respondents Gen. Juancho Saban, Col. Eugenio Clemen,
P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido Latag did not file their respective Comments. Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga (restrictive
custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito (a) dahil
On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as Governor Tan sa nangingibabaw na interes ng madla na nakapaloob dito,
allegedly acted pursuant to Sections 16 and 465 of the Local Government Code, which empowers the Provincial (b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang kapulisan
Governor to carry out emergency measures during calamities and disasters, and to call upon the appropriate tungkol dito.
national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or
sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized the declaration of a state of The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving
emergency as evidenced by Resolution No. 4, Series of 2009 issued on 31 March 2009 during its regular a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the
session.23 Constitution; second, the exceptional character of the situation and the paramount public interest is involved;
third, when [the] constitutional issue raised requires formulation of controlling principles to guide the bench, the
The threshold issue in the present case is whether or not Section 465, in relation to Section 16, of the Local bar, and the public; and fourth, the case is capable of repetition yet evading review.
Government Code authorizes the respondent governor to declare a state of emergency, and exercise the powers
enumerated under Proclamation 1-09, specifically the conduct of general searches and seizures. Subsumed …There is no question that the issues being raised affect the public interest, involving as they do the people’s
herein is the secondary question of whether or not the provincial governor is similarly clothed with authority to basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to
convene the CEF under the said provisions. formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the
We grant the petition. protection given by constitutional guarantees. And lastly, respondents contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts
We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which allegedly prevents judicial Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing exceptions.
review by this Court in the present case, citing for this specific purpose, Montes v. Court of Appeals and Purok Every bad, unusual incident where police officers figure in generates public interest and people watch what will
Bagong Silang Association, Inc. v. Yuipco.24 Simply put, the doctrine provides that where the issuance of an be done or not done to them. Lack of disciplinary steps taken against them erode public confidence in the police
extraordinary writ is also within the competence of the CA or the RTC, it is in either of these courts and not in the institution. As petitioners themselves assert, the restrictive custody of policemen under investigation is an
Supreme Court, that the specific action for the issuance of such writ must be sought unless special and important existing practice, hence, the issue is bound to crop up every now and then. The matter is capable of repetition or
laws are clearly and specifically set forth in the petition. The reason for this is that this Court is a court of last susceptible of recurrence. It better be resolved now for the education and guidance of all concerned. 31 (Emphasis
resort and must so remain if it is to perform the functions assigned to it by the Constitution and immemorial supplied)
tradition. It cannot be burdened with deciding cases in the first instance.25
Hence, the instant petition is given due course, impressed as it is with transcendental public importance.
The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated:
II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The i. One executive, one commander-in-chief
principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts,
the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional As early as Villena v. Secretary of Interior, 32 it has already been established that there is one repository of
questions of transcendental importance to the public. The Court can resolve this case without determining any executive powers, and that is the President of the Republic. This means that when Section 1, Article VII of the
factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original Constitution speaks of executive power, it is granted to the President and no one else. 33 As emphasized by
jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary Justice Jose P. Laurel, in his ponencia in Villena:
jurisdiction over the instant case.27
With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is
The instant case stems from a petition for certiorari and prohibition, over which the Supreme Court possesses readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural,
original jurisdiction.28 More crucially, this case involves acts of a public official which pertain to restrictive custody, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with
and is thus impressed with transcendental public importance that would warrant the relaxation of the general
the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
means that the President of the Philippines is the Executive of the Government of the Philippines, and no other.34 necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as provided framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the
under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under President’s wisdom or substitute its own. However, this does not prevent an examination of whether such power
Section 7, Article VII thereof. was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine
ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by one president the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s
Springing from the well-entrenched constitutional precept of One President is the notion that there are certain decision is totally bereft of factual basis.
acts which, by their very nature, may only be performed by the president as the Head of the State. One of these
acts or prerogatives is the bundle of Commander-in-Chief powers to which the "calling-out" powers constitutes a There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to
portion. The President’s Emergency Powers, on the other hand, is balanced only by the legislative act of call out the armed forces and to determine the necessity for the exercise of such power.43(Emphasis supplied)
Congress, as embodied in the second paragraph of Section 23, Article 6 of the Constitution: Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may
review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the
Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law, authorize the revocation or review of the President’s action to call out the armed forces. The distinction places the calling out
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary power in a different category from the power to declare martial law and the power to suspend the privilege of the
and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three
powers shall cease upon the next adjournment thereof.35 powers and provided for their revocation and review without any qualification.44

Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and That the power to call upon the armed forces is discretionary on the president is clear from the deliberation of the
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, Constitutional Commission:
invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless
privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may a graduated sequence.
revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus,
period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces,
convene in accordance with its rules without need of a call.36 when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx xxx xxx
The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.
thereof. 37 By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the
law, is bestowed upon the President alone. As noted in Villena, "(t)here are certain constitutional powers and President the widest leeway and broadest discretion in using the power to call out because it is considered as
prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus
approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil
is his power to suspend the writ of habeas corpus and proclaim martial law x x x.38 rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court.

Indeed, while the President is still a civilian, Article II, Section 3 39 of the Constitution mandates that civilian x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of
authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to
leader. The net effect of Article II, Section 3, when read with Article VII, prevent or suppress lawless violence, invasion or rebellion.45 (Emphasis Supplied)

Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The In the more recent case of Constantino, Jr. v. Cuisia, 46 the Court characterized these powers as exclusive to the
Constitution does not require that the President must be possessed of military training and talents, but as President, precisely because they are of exceptional import:
Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally,
he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain
power is his.40 As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension
placed by law at his command, and to employ them in the manner he may deem most effectual.41 of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by
co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus,
In the case of Integrated Bar of the Philippines v. Zamora, 42 the Court had occasion to rule that the calling-out and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall
powers belong solely to the President as commander-in-chief: within this special class that demands the exclusive exercise by the President of the constitutionally vested
power. The list is by no means exclusive, but there must be a showing that the executive power in question is of Mr. Natividad: No, not under the Commander-in-Chief provision.
similar gravitas and exceptional import.47 Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local governments. Under which
In addition to being the commander-in-chief of the armed forces, the President also acts as the leader of the does the police fall, under control or under supervision?
country’s police forces, under the mandate of Section 17, Article VII of the Constitution, which provides that, "The Mr. Natividad: Both, Madam President.
President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws Mr. Rodrigo: Control and supervision.
be faithfully executed." During the deliberations of the Constitutional Commission on the framing of this provision, Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President.52
Fr. Bernas defended the retention of the word "control," employing the same rationale of singularity of the office
of the president, as the only Executive under the presidential form of government.48 In the discussions of the Constitutional Commission regarding the above provision it is clear that the framers
never intended for local chief executives to exercise unbridled control over the police in emergency
Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: "The State shall situations. This is without prejudice to their authority over police units in their jurisdiction as provided by law, and
establish and maintain one police force, which shall be national in scope and civilian in character, to be their prerogative to seek assistance from the police in day to day situations, as contemplated by the
administered and controlled by a national police commission. The authority of local executives over the police Constitutional Commission. But as a civilian agency of the government, the police, through the NAPOLCOM,
units in their jurisdiction shall be provided by law."49 properly comes within, and is subject to, the exercise by the President of the power of executive control.53

A local chief executive, such as the provincial governor, exercises operational supervision over the police, 50 and iii. The provincial governor does not possess the same calling-out powers as the President
may exercise control only in day-to-day operations, viz: Given the foregoing, respondent provincial governor is not endowed with the power to call upon the armed forces
at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full control of the a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The
police by the local chief executive and local executives, the mayors. By our experience, this has spawned calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another
warlordism, bossism and sanctuaries for vices and abuses. If the national government does not have a official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section
mechanism to supervise these 1,500 legally, technically separate police forces, plus 61 city police forces, 465 of the Local Government Code, as will be discussed subsequently.
fragmented police system, we will have a lot of difficulty in presenting a modern professional police force. So that
a certain amount of supervision and control will have to be exercised by the national government. Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo, which
dealt squarely with the issue of the declaration of a state of emergency, does it limit the said authority to the
For example, if a local government, a town cannot handle its peace and order problems or police problems, such President alone. Respondents contend that the ruling in David expressly limits the authority to declare a national
as riots, conflagrations or organized crime, the national government may come in, especially if requested by the emergency, a condition which covers the entire country, and does not include emergency situations in local
local executives. Under that situation, if they come in under such an extraordinary situation, they will be in government units.54 This claim is belied by the clear intent of the framers that in all situations involving threats to
control. But if the day-to-day business of police investigation of crime, crime prevention, activities, traffic control, security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the President who
is all lodged in the mayors, and if they are in complete operational control of the day-to-day business of police possesses the sole authority to exercise calling-out powers. As reflected in the Journal of the Constitutional
service, what the national government would control would be the administrative aspect. Commission:
xxx xxx xxx
Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties being performed by Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of "invasion or
the ordinary policemen, will be under the supervision of the local executives? rebellion." Mr. Sumulong stated that the committee could not accept the amendment because under the first
Mr. Natividad: Yes, Madam President. section of Section 15, the President may call out and make use of the armed forces to prevent or suppress not
xxx xxx xxx only lawless violence but even invasion or rebellion without declaring martial law. He observed that by deleting
Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by the National Police "invasion or rebellion" and substituting PUBLIC DISORDER, the President would have to declare martial law
Commission? before he can make use of the armed forces to prevent or suppress lawless invasion or rebellion.
Mr. Natividad: If the situation is beyond the capacity of the local governments.51 (Emphases supplied)
Furthermore according to the framers, it is still the President who is authorized to exercise supervision and Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where there is some
control over the police, through the National Police Commission: lawless violence in a small portion of the country or public disorder in another at which times, the armed forces
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all the armed can be called to prevent or suppress these incidents. He noted that the Commander-in-Chief can do so in a
forces. minor degree but he can also exercise such powers should the situation worsen. The words "invasion or
Mr. Natividad: Yes, Madam President. rebellion" to be eliminated on line 14 are covered by the following sentence which provides for "invasion or
Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose they come under rebellion." He maintained that the proposed amendment does not mean that under such circumstances, the
the Commander-in-Chief powers of the President of the Philippines. President cannot call on the armed forces to prevent or suppress the same.55 (Emphasis supplied)
Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of the President of
the Philippines. III. Section 465 of the Local
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police. Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09
Mr. Natividad: He is the President. Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act, and used this
Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the President is the incident to justify the exercise of the powers enumerated under Proclamation 1-09. 56 He invokes Section 465, in
Commander-in-Chief of all the armed forces. relation to Section 16, of the Local Government Code, which purportedly allows the governor to carry out
emergency measures and call upon the appropriate national law enforcement agencies for assistance. But a
closer look at the said proclamation shows that there is no provision in the Local Government Code nor in any Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said provision expressly
law on which the broad and unwarranted powers granted to the Governor may be based. refers to calamities and disasters, whether man-made or natural. The governor, as local chief executive of the
province, is certainly empowered to enact and implement emergency measures during these occurrences. But
Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of the the kidnapping incident in the case at bar cannot be considered as a calamity or a disaster. Respondents cannot
kidnappers and their supporters,"57 as being violative of the constitutional proscription on general search warrants find any legal mooring under this provision to justify their actions.
and general seizures. Petitioners rightly assert that this alone would be sufficient to render the proclamation void,
as general searches and seizures are proscribed, for being violative of the rights enshrined in the Bill of Rights, Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First, the Armed
particularly: Forces of the Philippines does not fall under the category of a "national law enforcement agency," to which the
National Police Commission (NAPOLCOM) and its departments belong.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend the Republic
arrest shall issue except upon probable cause to be determined personally by the judge after examination under against all enemies, foreign and domestic. Its aim is also to secure the integrity of the national territory.60
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.58 Second, there was no evidence or even an allegation on record that the local police forces were inadequate to
cope with the situation or apprehend the violators. If they were inadequate, the recourse of the provincial
In fact, respondent governor has arrogated unto himself powers exceeding even the martial law powers of the governor was to ask the assistance of the Secretary of Interior and Local Government, or such other authorized
President, because as the Constitution itself declares, "A state of martial law does not suspend the operation of officials, for the assistance of national law enforcement agencies.
the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, The Local Government Code does not involve the diminution of central powers inherently vested in the National
nor automatically suspend the privilege of the writ."59 Government, especially not the prerogatives solely granted by the Constitution to the President in matters of
security and defense.
We find, and so hold, that there is nothing in the Local Government Code which justifies the acts sanctioned
under the said Proclamation. Not even Section 465 of the said Code, in relation to Section 16, which states: The intent behind the powers granted to local government units is fiscal, economic, and administrative in nature.
the Code is concerned only with powers that would make the delivery of basic services more effective to the
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation. constituents,61 and should not be unduly stretched to confer calling-out powers on local executives.
xxx xxx xxx
(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a step towards
and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall: the autonomy of local government units (LGUs), and is actually an experiment whose success heavily relies on
(1) Exercise general supervision and control over all programs, projects, services, and activities of the provincial the power of taxation of the LGUs. The underpinnings of the Code can be found in Section 5, Article II of the
government, and in this connection, shall: 1973 Constitution, which allowed LGUs to create their own sources of revenue. 62 During the interpellation made
xxx xxx xxx by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that "Decentralization is an administrative concept
(vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made and and the process of shifting and delegating power from a central point to subordinate levels to promote
natural disasters and calamities; independence, responsibility, and quicker decision-making. … (I)t does not involve any transfer of final authority
(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of the appropriate from the national to field levels, nor diminution of central office powers and responsibilities. Certain government
corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, agencies, including the police force, are exempted from the decentralization process because their functions are
projects, services and activities of the province and, in addition to the foregoing, shall: not inherent in local government units."63
xxx xxx xxx
(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless violence, IV. Provincial governor is not authorized to convene CEF
rebellion or sedition or to apprehend violators of the law when public interest so requires and the police forces of Pursuant to the national policy to establish one police force, the organization of private citizen armies is
the component city or municipality where the disorder or violation is happening are inadequate to cope with the proscribed. Section 24 of Article XVIII of the Constitution mandates that:
situation or the violators.
Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All
Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those paramilitary forces including Civilian Home Defense Forces (CHDF) not consistent with the citizen armed force
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and established in this Constitution, shall be dissolved or, where appropriate, converted into the regular force.
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the Additionally, Section 21of Article XI states that, "The preservation of peace and order within the regions shall be
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in
ecology, encourage and support the development of appropriate and self-reliant scientific and technological accordance with applicable laws. The defense and security of the regions shall be the responsibility of the
capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment National Government."
among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
(Emphases supplied)
Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the organization
of private armed groups similar to the CEF convened by the respondent Governor. The framers of the
Constitution were themselves wary of armed citizens’ groups, as shown in the following proceedings:

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating under the
cloak, under the mantle of legality is creating a lot of problems precisely by being able to operate as an
independent private army for many regional warlords. And at the same time, this I think has been the thrust, the
intent of many of the discussions and objections to the paramilitary units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other armed torces not
recognized by constituted authority which shall be dismantled and dissolved. In my trips to the provinces, I heard
of many abuses committed by the CHDF (Civilian Home Defense Forces), specially in Escalante, Negros
Occidental. But I do not know whether a particular CHDF is approved or authorized by competent authority. If it is
not authorized, then the CHDF will have to be dismantled. If some CHDFs, say in other provinces, are authorized
by constituted authority, by the Armed Forces of the Philippines, through the Chief of Staff or the Minister of
National Defense, if they are recognized and authorized, then they will not be dismantled. But I cannot give a
categorical answer to any specific CHDF unit, only the principle that if they are armed forces which are not
authorized, then they should be dismantled. 64 (Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian Emergency
Force (CEF) in the present case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding respondents to desist from
further proceedings m implementing Proclamation No. 1, Series of 2009, and its Implementing Guidelines. The
said proclamation and guidelines are hereby declared NULL and VOID for having been issued in grave abuse of
discretion, amounting to lack or excess of jurisdiction.

SO ORDERED.

B/GEN. (RET.) FRANCISCO V. G.R. No. 170165

GUDANI AND LT. COL.
ALEXANDER F. BALUTAN
Petitioners,
- versus - QUISUMBING,
YNARES-SANTIAGO,
Respondents.
Promulgated:
August 15, 2006
x--------------------------------------------------------------------------- x
DECISION

TINGA, J.:
A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their superior
officers are exemptfrom the strictures of military law and discipline if such defiance is predicated on an act
otherwise valid under civilian law. Obedience and deference to the military chain of command and the President
as commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian control. These
values of obedience and deference expected of military officers are content-neutral, beyond the sway of the
officers own sense of what is prudent or rash, or more elementally, of right or wrong. A self-righteous military On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing
invites itself as the scoundrel’s activist solution to the ills of participatory democracy. scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that
some of the invited officers also could not attend as they were attending to other urgent operational matters. By
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo [1] enjoining them this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.
and other military officers from testifying before Congress without the Presidents consent. Petitioners also pray
for injunctive relief against a pending preliminary investigation against them, in preparation for possible court- Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA
martial proceedings, initiated within the military justice system in connection with petitioners violation of the Superintendent from the office of Gen. Senga, stating as follows:
aforementioned directive.
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be addressed to APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN
the satisfaction of petitioners, the Court recognizes these values as of paramount importance to our civil society, PA (GSC) ACCORDINGLY.[7]
even if not determinative of the resolution of this petition. Had the relevant issue before us been the right of the
Senate to compel the testimony of petitioners, the constitutional questions raised by them would have come to The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no
fore. Such a scenario could have very well been presented to the Court in such manner, without the petitioners approval has been granted by the President to any AFP officer to appear before the hearing scheduled on that
having had to violate a direct order from their commanding officer. Instead, the Court has to resolve whether day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both
petitioners may be subjected to military discipline on account of their defiance of a direct order of the AFP Chief testified as to the conduct of the 2004 elections.
of Staff.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional
The solicited writs of certiorari and prohibition do not avail; the petition must be denied. information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of
the AFP Command Center had attempted to deliver the radio message to Gen. Gudanis residence in a
I. subdivision in Paraaque City late in the night of 27 September 2005, but they were not permitted entry by the
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners, Brigadier subdivision guards. The next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen.
General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to Sengas letter to Sen. Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino
the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were assigned to of the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen.
the Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the Senga called Commodore Tolentino on the latters cell phone and asked to talk to Gen. Gudani, but Gen. Gudani
latter as the Assistant Commandant of Cadets.[2] refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani that it was an order,
yet Gen. Gudani still refused to take Gen. Sengas call.[8]
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to
appear at a public hearing before the Senate Committee on National Defense and Security (Senate Committee) A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a
scheduled on 28 September 2005. The hearing was scheduled after topics concerning the conduct of the 2004 statement which noted that the two had appeared before the Senate Committee in spite of the fact that a
elections emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an guidance has been given that a Presidential approval should be sought prior to such an appearance; that such
audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of directive was in keeping with the time[-]honored principle of the Chain of Command; and that the two officers
the Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will
At the time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, be subjected to General Court Martial proceedings x x x Both Gen. Gudani and Col. Balutan were likewise
of Joint Task Force Ranao by the AFP Southern Command. Joint Task Force Ranao was tasked with the relieved of their assignments then.[9]
maintenance of peace and order during the 2004 elections in the provinces of Lanao del Norte and Lanao del
Sur.[3] ` On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order
No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the executive department including the
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were military establishment from appearing in any legislative inquiry without her approval. [10] This Court subsequently
among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28 September ruled on the constitutionality of the said executive order in Senate v. Ermita.[11] The relevance of E.O. 464
2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be and Senate to the present petition shall be discussed forthwith.
unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless directed other officers
from the AFP who were invited to attend the hearing.[4] In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A.
Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the (OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both petitioners
Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA invoked their right to remain silent.[12] The following day, Gen. Gudani was compulsorily retired from military
Iriberri in behalf of Gen. Senga.[5] Noting that Gen. Gudani and Col. Balutan had been invited to attend the service, having reached the age of 56.[13]
Senate Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the
hearing.[6] Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged
addressed to the PMA Superintendent. with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on
conduct prejudicial to the good order and military discipline. [14] As recommended, the case was referred to a Pre- acknowledged as a general principle[23] that AFP personnel of whatever rank are liable under military law for
Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM). [15] Consequently, on 24 violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the
October 2005, petitioners were separately served with Orders respectively addressed to them and signed by Court to decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.
respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed
petitioners to appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of III.
Articles 65[16] and 97[17] of Commonwealth Act No. 408, [18] and to submit their counter-affidavits and affidavits of Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present
witnesses at the Office of the Judge Advocate General. [19] The Orders were accompanied by respective charge petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464, but
sheets against petitioners, accusing them of violating Articles of War 65 and 97. instead, they were charged for violating the direct order of Gen. Senga not to appear before the Senate
Committee, an order that stands independent of the executive order. Distinctions are called for, since
It was from these premises that the present petition for certiorari and prohibition was filed, particularly Section 2(b) of E.O. 464 listed generals and flag officers of the Armed Forces of the Philippines and such other
seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying officers who in the judgment of the Chief of Staff are covered by the executive privilege, as among those public
before Congress without her prior approval be declared unconstitutional; (2) the charges stated in the charge officials required in Section 3 of E.O. 464 to secure prior consent of the President prior to appearing before either
sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in- House of Congress. The Court in Senate declared both Section 2(b) and Section 3 void,[24] and the impression
interest or persons acting for and on their behalf or orders, be permanently enjoined from proceeding against may have been left following Senate that it settled as doctrine, that the President is prohibited from requiring
petitioners, as a consequence of their having testified before the Senate on 28 September 2005.[20] military personnel from attending congressional hearings without having first secured prior presidential consent.
That impression is wrong.
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a gag order, which violates the principle of separation of powers in Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by significant
government as it interferes with the investigation of the Senate Committee conducted in aid of legislation. They limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval
also equate the gag order with culpable violation of the Constitution, particularly in relation to the publics before appearing before Congress, the notion of executive control also comes into consideration. [25]However, the
constitutional right to information and transparency in matters of public concern. Plaintively, petitioners claim that ability of the President to require a military official to secure prior consent before appearing before Congress
the Filipino people have every right to hear the [petitioners] testimonies, and even if the gag order were pertains to a wholly different and independent specie of presidential authoritythe commander-in-chief powers of
unconstitutional, it still was tantamount to the crime of obstruction of justice. Petitioners further argue that there the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not
was no law prohibiting them from testifying before the Senate, and in fact, they were appearing in obeisance to encumbered by the same degree of restriction as that which may attach to executive privilege or executive
the authority of Congress to conduct inquiries in aid of legislation. control.

Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the
his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the Articles of War defines issues raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of
persons subject to military law as all officers and soldiers in the active service of the AFP. E.O. 464 would bear no impact on the present petition since petitioners herein were not called to task for
violating the executive order. Moreover, the Court was then cognizant that Senate and this case would ultimately
II. hinge on disparate legal issues. Relevantly, Senatepurposely did not touch upon or rule on the faculty of the
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating President, under the aegis of the commander-in-chief powers[26] to require military officials from securing prior
Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering that per records, consent before appearing before Congress. The pertinent factors in considering that question are markedly
petitioners have not yet been subjected to court martial proceedings. Owing to the absence of such proceedings, outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this petition that
the correct inquiry should be limited to whether respondents could properly initiate such proceedings preparatory those factors come into play.
to a formal court-martial, such as the aforementioned preliminary investigation, on the basis of petitioners acts At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General
surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent with the Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement
principle that it is not a trier of facts at first instance, [21] is averse to making any authoritative findings of fact, for last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to
that function is first for the court-martial court to fulfill. military law as, among others, all officers and soldiers in the active service of the [AFP], and points out that he is
no longer in the active service.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged
by petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to testify in its 28 This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where the Court declared
September 2005 hearing. Petitioners attended such hearing and testified before the Committee, despite the fact that an officer whose name was dropped from the roll of officers cannot be considered to be outside the
that the day before, there was an order from Gen. Senga (which in turn was sourced per instruction from jurisdiction of military authorities when military justice proceedings were initiated against him before the
President Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is
precisely admit before this Court that they had learned of such order prior to their testimony, although the OSG terminated. Thus, the Court held:
asserts that at the very least, Gen. Gudani already knew of such order before he testified. [22] Yet while this fact
may be ultimately material in the court-martial proceedings, it is not determinative of this petition, which as stated The military authorities had jurisdiction over the person of Colonel Abadilla at the time
earlier, does not proffer as an issue whether petitioners are guilty of violating the Articles of War. of the alleged offenses. This jurisdiction having been vested in the military authorities, it is
retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that
What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga, jurisdiction once acquired is not lost upon the instance of the parties but continues until the
which emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be case is terminated.[28]
 dominance and administration over the military, the Constitution is silent, except for the commander-in-
Citing Colonel Winthrops treatise on Military Law, the Court further stated: chief clause which is fertile in meaning and
We have gone through the treatise of Colonel Winthrop and We find the following implication as to whatever inherent martial authority the President may possess.[36]
passage which goes against the contention of the petitioners, viz
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which
3. Offenders in general Attaching of jurisdiction. It has further been begins with the simple declaration that [t]he President shall be the Commander-in-Chief of all armed forces of the
held, and is now settled law, in regard to military offenders in general, that if Philippines x x x[37] Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the
the military jurisdiction has once duly attached to them previous to the date commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons
of the termination of their legal period of service, they may be brought to trial and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the
by court-martial after that date, their discharge being meanwhile withheld. travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.
This principle has mostly been applied to cases where the offense was
committed just prior to the end of the term. In such cases the interests of Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was ordered confined
discipline clearly forbid that the offender should go unpunished. It is held under house arrest by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a
therefore that if before the day on which his service legally terminates condition for his house arrest, that he may not issue any press statements or give any press conference during
and his right to a discharge is complete, proceedings with a view to his period of detention. The Court unanimously upheld such restrictions, noting:
trial are commenced against him as by arrest or the service of charges,
the military jurisdiction will fully attach and once attached may be [T]he Court is of the view that such is justified by the requirements of military
continued by a trial by court-martial ordered and held after the end of discipline. It cannot be gainsaid that certain liberties of persons in the military service,
the term of the enlistment of the accused x x x [29] including the freedom of speech, may be circumscribed by rules of military discipline.
Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the the military in fulfilling its duties under the law depends to a large extent on the
initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no maintenance of discipline within its ranks. Hence, lawful orders must be followed without
reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree question and rules must be faithfully complied with, irrespective of a soldier's personal
No. 1638, as amended, [a]n officer or enlisted man carried in the retired list [of the Armed Forces of the views on the matter. It is from this viewpoint that the restrictions imposed on petitioner
Philippines] shall be subject to the Articles of War x x x[30]To this citation, petitioners do not offer any response, Kapunan, an officer in the AFP, have to be considered.[39]
and in fact have excluded the matter of Gen. Gudanis retirement as an issue in their subsequent memorandum.
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes
IV. several of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot
We now turn to the central issues. abide by these limitations normally do not pursue a military career and instead find satisfaction in other fields;
and in fact many of those discharged from the service are inspired in their later careers precisely by their
Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to rebellion against the regimentation of military life. Inability or unwillingness to cope with military discipline is not a
their appearance before the Senate, claiming that it violates the constitutional right to information and stain on character, for the military mode is a highly idiosyncratic path which persons are not generally
transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of obstruction of conscripted into, but volunteer themselves to be part of. But for those who do make the choice to be a soldier,
justice and grave coercion. However, the proper perspective from which to consider this issue entails the significant concessions to personal freedoms are expected. After all, if need be, the men and women of the
examination of the basis and authority of the President to issue such an order in the first place to members of the armed forces may be commanded upon to die for country, even against their personal inclinations.
AFP and the determination of whether such an order is subject to any limitations. It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the
democratic system of governance. The constitutional role of the armed forces is as protector of the people and of
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the the State.[40] Towards this end, the military must insist upon a respect for duty and a discipline without counterpart
democratic way of life, to civilian supremacy over the military, and to the general stability of our representative in civilian life.[41] The laws and traditions governing that discipline have a long history; but they are founded on
system of government. The Constitution reposes final authority, control and supervision of the AFP to the unique military exigencies as powerful now as in the past.[42] In the end, it must be borne in mind that the armed
President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief forces has a distinct subculture with unique needs, a specialized society separate from civilian society. [43] In the
represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in elegant prose of the eminent British military historian, John Keegan:
nature.[31] Civilian supremacy over the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.[32] [Warriors who fight wars have] values and skills [which] are not those of politicians
and diplomats. They are those of a world apart, a very ancient world, which exists in parallel
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles with the everyday world but does not belong to it. Both worlds change over time, and the
to the legislative and executive branches of government in relation to military affairs. Military appropriations, as warrior world adopts in step to the civilian. It follows it, however, at a distance.The distance can
with all other appropriations, are determined by Congress, as is the power to declare the existence of a state of never be closed, for the culture of the warrior can never be that of civilization itself.[44]
war.[33] Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ
of habeas corpus.[34] The approval of the Commission on Appointments is also required before the President can Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior
promote military officers from the rank of colonel or naval captain. [35] Otherwise, on the particulars of civilian officer is punishable by court-martial under Article 65 of the Articles of War. [45] An individual soldier is not free to
ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end of all discipline
if the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed.
permitted to act upon their own opinion oftheir rights [or their opinion of the Presidents intent], and to throw off They seek to be exempted from military justice for having traveled to the Senate to testify before the Senate
the authority of the commander whenever they supposed it to be unlawfully exercised. [46] Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners position is affirmed, a
considerable exception would be carved from the unimpeachable right of military officers to restrict the speech
Further traditional restrictions on members of the armed forces are those imposed on free speech and and movement of their juniors. The ruinous consequences to the chain of command and military discipline simply
mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from cannot warrant the Courts imprimatur on petitioners position.
speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the speech of a
soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such V.
restraint. It is integral to military discipline that the soldiers speech be with the consent and approval of the Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military
military commander. discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding to an
invitation from the Philippine Senate, a component of the legislative branch of government. At the same time, the
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to order for them not to testify ultimately came from the President, the head of the executive branch of government
speak freely on political matters. The Constitution requires that [t]he armed forces shall be insulated from and the commander-in-chief of the armed forces.
partisan politics, and that [n]o member of the military shall engage directly or indirectly in any partisan political
activity, except to vote.[47] Certainly, no constitutional provision or military indoctrination will eliminate a soldiers Thus, we have to consider the question: may the President prevent a member of the armed forces from testifying
ability to form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her
political belief is a potential source of discord among people, and a military torn by political strife is incapable of power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable
fulfilling its constitutional function as protectors of the people and of the State. For another, it is ruinous to military under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance
discipline to foment an atmosphere that promotes an active dislike of or dissent against the President, the before it of a military officer against the consent of the President has adequate remedies under law to compel
commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they may such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by
dislike or distrust. This fundamental principle averts the country from going the way of banana republics. the President. If the President is not so inclined, the President may be commanded by judicial order to compel
the attendance of the military officer. Final judicial orders have the force of the law of the land which the
Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by regime President has the duty to faithfully execute.[50]
changes wherein active military dissent from the chain of command formed a key, though not exclusive, element.
The Court is not blind to history, yet it is a judge not of history but of the Constitution. The Constitution, and Explication of these principles is in order.
indeed our modern democratic order, frown in no uncertain terms on a politicized military, informed as they are
on the trauma of absolute martial rule. Our history might imply that a political military is part of the natural order, As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on
but this view cannot be affirmed by the legal order. The evolutionary path of our young democracy necessitates a executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court
reorientation from this view, reliant as our socio-political culture has become on it. At the same time, evolution recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally
mandates a similar demand that our system of governance be more responsive to the needs and aspirations of invoked on specified grounds. However, the ability of the President to prevent military officers from
the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an undue testifying before Congress does not turn on executive privilege, but on the Chief Executives power as
influence in our polity. commander-in-chief to control the actions and speech of members of the armed forces. The Presidents
prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary
restriction on members of the military. A soldier cannot leave his/her post without the consent of the commanding Our ruling that the President could, as a general rule, require military officers to seek presidential approval before
officer. The reasons are self-evident. The commanding officer has to be aware at all times of the location of the appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the
troops under command, so as to be able to appropriately respond to any exigencies. For the same reason, prerogatives of the President as commander-in-chief. Congress holds significant control over the armed forces in
commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their matters such as budget appropriations and the approval of higher-rank promotions,[51] yet it is on the President
presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful consequences, that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to
such as a soldier being denied permission to witness the birth of his first-born, or to attend the funeral of a the position. Again, the exigencies of military discipline and the chain of command mandate that the Presidents
parent. Yet again, military life calls for considerable personal sacrifices during the period of conscription, wherein ability to control the individual members of the armed forces be accorded the utmost respect. Where a military
the higher duty is not to self but to country. officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that
the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before Senate, who is the commander-in-chief of the armed forces.[52]
he/she may leave his destination. A soldier who goes from the properly appointed place of duty or absents from
his/her command, guard, quarters, station, or camp without proper leave is subject to punishment by court- At the same time, the refusal of the President to allow members of the military to appear before Congress is still
martial.[48] It is even clear from the record that petitioners had actually requested for travel authority from the PMA subject to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of
in Baguio City to Manila, to attend the Senate Hearing. [49] Even petitioners are well aware that it was necessary inquiries in aid of legislation. [53] Inasmuch as it is ill-advised for Congress to interfere with the Presidents power
for them to obtain permission from their superiors before they could travel to Manila to attend the Senate as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congresss right to
Hearing. conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway
despite the presidential prohibition. Yet the Court is aware that with its pronouncement today that the President
has the right to require prior consent from members of the armed forces, the clash may soon loom or actualize.
 the rights of persons appearing in or affected by such inquiries be respected, an imposition that
We believe and hold that our constitutional and legal order sanctions a modality by which members of the military obligates Congress to adhere to the guarantees in the Bill of Rights.
may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does
not offend the Chief Executives prerogatives as commander-in-chief. The remedy lies with the courts. These abuses are, of course, remediable before the courts, upon the proper suit filed by the
persons affected, even if they belong to the executive branch. Nonetheless, there may be
The fact that the executive branch is an equal, coordinate branch of government to the legislative exceptional circumstances wherein a clear pattern of abuse of the legislative power of inquiry
creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is might be established, resulting in palpable violations of the rights guaranteed to members of
considerable interplay between the legislative and executive branches, informed by due deference and respect the executive department under the Bill of Rights. In such instances, depending on the
as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a particulars of each case, attempts by the Executive Branch to forestall these abuses may be
last resort that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third accorded judicial sanction[59].
coordinate branch of government, does not enjoy a similar dynamic with either the legislative or executive
branches. Whatever weakness inheres on judicial power due to its inability to originate national policies and In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials
legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance from testifying before Congress without the Presidents consent notwithstanding the invocation of executive
to its rulings by the other branches of government. privilege to justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso
facto superseded the claim of executive privilege, acknowledging instead that the viability of executive privilege
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55] among stood on a case to case basis. Should neither branch yield to the other branchs assertion, the constitutional
others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative inquiry. recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with
[56]
Arnault recognized that the legislative power of inquiry and the process to enforce it, is an essential and conclusiveness, attendance or non-attendance in legislative inquiries.
appropriate auxiliary to the legislative function. [57] On the other hand, Bengzon acknowledged that the power of
both houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member
circumscribed by Section 21, Article VI of the Constitution. [58] From these premises, the Court enjoined the of the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief to
Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing evidence compel the attendance. Such judicial action should be directed at the heads of the executive branch or the
before the committee, holding that the inquiry in question did not involve any intended legislation. armed forces, the persons who wield authority and control over the actions of the officers concerned. The
legislative purpose of such testimony, as well as any defenses against the same whether grounded on executive
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on privilege, national security or similar concerns would be accorded due judicial evaluation. All the constitutional
the constitutional power of congressional inquiry. Thus: considerations pertinent to either branch of government may be raised, assessed, and ultimately weighed
against each other. And once the courts speak with finality, both branches of government have no option but to
As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the comply with the decision of the courts, whether the effect of the decision is to their liking or disfavor.
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
parity of reasoning, Congress has the right to that information and the power to compel the between the legislative and executive branches of government on the proper constitutional parameters of power.
[60]
disclosure thereof. This is the fair and workable solution implicit in the constitutional allocation of powers among the three
branches of government. The judicial filter helps assure that the particularities of each case would ultimately
As evidenced by the American experience during the so-called McCarthy era, however, the govern, rather than any overarching principle unduly inclined towards one branch of government at the expense
right of Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to of the other. The procedure may not move as expeditiously as some may desire, yet it ensures thorough
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to deliberation of all relevant and cognizable issues before one branch is compelled to yield to the other. Moreover,
the Courts certiorari powers under Section 1, Article VIII of the Constitution. judicial review does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and responsibilities that are
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not political in nature, are free to smooth over the thorns in their relationship with a salve of their own choosing.
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President,
avoid such result as occurred in Bengzon is to indicate in its invitations to the public officials as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the
concerned, or to any person for that matter, the possible needed statute which prompted the President has earlier disagreed with the notion of officers appearing before the legislature to testify, the
need for the inquiry. Given such statement in its invitations, along with the usual indication of Chief Executive is nonetheless obliged to comply with the final orders of the courts.
the subject of inquiry and the questions relative to and in furtherance thereof, there would be
less room for speculation on the part of the person invited on whether the inquiry is in aid of Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on
legislation. them and other military officers not to testify before Congress without the Presidents consent. Yet these issues
ultimately detract from the main point that they testified before the Senate despite an order from their
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative commanding officer and their commander-in-chief for them not to do so, [61] in contravention of the traditions of
power of inquiry. The provision requires that the inquiry be done in accordance with the Senate military discipline which we affirm today. The issues raised by petitioners could have very well been raised and
or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of properly adjudicated if the proper procedure was observed. Petitioners could have been appropriately allowed to
an inquiry conducted without duly published rules of procedure. Section 21 also mandates that
testify before the Senate without having to countermand their Commander-in-chief and superior officer under the
setup we have prescribed.

We consider the other issues raised by petitioners unnecessary to the resolution of this petition.

Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief
and Commanding General in obeisance to a paramount idea formed within their consciences, which could not be
lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is the Constitution, the
embodiment of the national conscience. The Constitution simply does not permit the infraction which petitioners
have allegedly committed, and moreover, provides for an orderly manner by which the same result could have
been achieved without offending constitutional principles.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 99031 October 15, 1991

RODOLFO D. LLAMAS, petitioner,
vs.
EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents.

PARAS, J.:
The case before Us calls for a determination of whether or not the President of the Philippines has the power to
grant executive clemency in administrative cases. In connection therewith, two important questions are also put
in issue, namely, whether or not the grant of executive clemency and the reason therefore, are political questions
beyond judicial review, and whether or not the questioned act was characterized by grave abuse of discretion
amounting to lack of jurisdiction.

Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he
assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private
respondent Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended
from office for a period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the
filing of this petition and is being impleaded herein in that official capacity for having issued, by authority of the Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of
President, the assailed Resolution granting executive clemency to respondent governor. the President in administrative suspension of local officials shall be immediately executory without prejudice to
appeal to appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the
Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, administrative suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March
filed on June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then 1, 1991), respondent govemor moved for a reconsideration of the Executive Secretary's Resolution, to which
Department of Local Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) petitioner filed an opposition. From the allegations of the petitioner in his petition, respondent govemor accepted
203(2) (p), and 208(w), of Batas Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, his suspension and turned over his office to petitioner.
and other appropriate laws, among them, the Anti-Graft and Corrupt Practices ACt. Prior to that, petitoner filed
with the Office of the Omdusman a verified complainant dated November 10, 1988 against respondent governor To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an "administrative order"
for the latter's alleged viloation of Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as the Anti- dated March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my
Graft and Corrupt Practices Act. fimctions as govemor and shall hold office at my residence," in the belief that "the pendency of my Motion for
Reconsideration precludes the coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10,
The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both Comment). And, as categorically stated in the petition, the reassumption ceremony by respondent governor was
petitioner and respondent govemor presented their respective evidence. held on May 21, 1991 (p. 8, Petition).

Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution
Governor Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock dated May 15, 1991, in O.P. Case No. 4480, which reads:
and non-profit organization headed by the governor himself as chairman and controlled by his brother-in-law as
executive director, trustee, and secretary; that the said Loan Agreement was never authorized and approved by This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in
the Provincial Board, in direct contravention of the provisions of the Local Government Code; that the said connection with the decision of the Secretary of then Department of Local Governmen (DLG) dated 21
Agreement is wholly one-sided in favor of the Foundation and grossly inimical to the interest of the Provincial September 1990, as affirmed in a Resolution of this Office dated 26 February 1991, suspending
Government (because it did not provide for interest or for any type security and it did not provide for suretyship petitioner from office for period of ninety (90) days upon the finality of said decision.
and comptrollership or audit to control the safe disbursement of said loan); that a total amount of P20,000,000.00
was disbursed to the aforesaid Foundation; that the transactions constitute a fraudulent scheme to defraud the As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that
Provincial Government; and that the said Agreement is wholly unconstitutional, illegal, a immoral. (Annex "A", petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a loan contract
Petition) — with the Lingkod Tarlac Foundation, Inc. (LTFI) — grossly/manifestly disadvantageous to Tarlac
Province. In his letter-petition of 10 May 1991, thereby pleading for a thirty (30)-day reduction of his
On the other hand, it is the contention of respondent governor that "the funds were intended to generate suspension, petitioner invited attention to the DLG Secretary's decision clearing him of having
livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was personally benefitted from the questioned transaction. In the same letter, petitioner manifests serving
authorized by law and considered the best alternative as a matter of judgment." (pp. 12-13, Appeal more than sixty (60) days of the ninety-day suspension. Previously, petitioner submitted documents and
Memorandom); that he resigned from the said Foundation in order to forestall any suspicion that he would letters from his constituents tending to show the relative success of his livelihood loan program pursue
influence it; that it is not true that the Loan Agreement did not provide for continuing audit by the Provincial under the aegis of the LTFI and/or the Foundation's credible loan repayment record. To cite some:
Government because the Memorandum of Agreement provides otherwise; and that the Agreement is not 1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full
manifestly and grossly disadvantageous to the Provincial Government and respondent governor did not and payment of its loan (P15.05 M) plus interest with LTFI;
would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A", Petition) 2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of
After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, the loan granted to family-borrowers out of funds provided by LTFI;
1990, dispositive portion of which reads: 3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by
WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated LTFI;
Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, 4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI
which act amounts to serious neglect of duty and/or abuse of authority, for which tilp penalty of have bee utilized in hybrid com production; and
suspension from office for a period of ninety (90) days, effective upon the finality of this Decision, is 5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the
hereby imposed upon him. (p. 3, Petition) payment of 76 of the amount (P203,966.00) loaned to the Federation for tobacco production.
Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to accelerate
Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension. the delivery of livelihood services to his provincemates. As the truism goes, however, the end does not
Respondent govemor moved for a reconsideration of the abovequoted decision but the same was denied on always justify the means. Be that as it may, but without belaboring the propriety of the loan agreement
October 19, 1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial aforementioned, some measure of leniency may be accorded petitioner as the purpose of his suspen
dated October 19, 1990 to the Office of the President (O.P. Case No. 4480). sion may have made its mark.
WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense
On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent that his ninety-day suspension is hereby reduced to the period already served.
governor's appeal and affirming the September 21, 1990 DLG decision. SO ORDERED.
(Annex "F", Petition; pp. 25-26, Rollo)
By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his office to
allegedly withou any notification made to the petitioner. Petitioner Llamas was published, front page, in the March 5, 1991 issue of the Manila Bulletin. A copy of
this news account is attached and made a part hereof as Annex C);
Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, 14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have
capricious and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) extended recognition to Petitions Llamas' assumption of the governorship. Llamas met with President
basically on the ground th executive clemency could be granted by the President only in criminal cases as there Aquino and Rep. Cojuangco and, during this meeting, the two highest officials of the land have asked
is nothing in the statute books or even in the Constitution which allows the grant thereof in administrative cases. Llamas to discharge his duties acting governor;
Petitioner also contends that since respondent governor refused to recognize his suspension (having reassumed 15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member Aganon,
the governorship in gross defiance of the suspension order), executive clemency cannot apply to him; that his dated March 18, 1991, a pointing bim as acting vice governor of the province, "in view of the suspension
rights to due process were violated because the grant of executive clemency was so sudden that he was not of Gov. Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo Llamas as acting governor."
even notified thereof; and that despite a finding by public respondent of impropriety in the loan transaction A copy of this designation is attached and made a part hereof as Annex D;
entered into by respondent governor, the former failed to justify the reduction of the penalty of suspension on the
latter. Petitioner further alleges that the exftutive clemency granted by public respondent was "the product of a xxx xxx xxx
hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly no real petition for the 30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May 21,
grant of executive clemency filed by respondent govemor. 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 & 8, Rollo)
Batas Pambansa Blg. 337 provides: It is prayed in the instant petition dated May 21, 1991 that:
b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a temporary
Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local restraining order be issued stopping the Respondents from enforcing, in any manner, the aforesaid
Government if the respondent is a provincial or city official, ... contested resolution, and Respondent Ocampo, firom continuing with his reassumption of the
(2) Preventive suspension may be imposed at any time after the issues are joined, when there is governorship. IN THE ALTERNATIVE, that a cease and desist order be issued against Respondent
reasonable ground to believe that the respondent has committed the act or acts complained of, when Ocampo stopping him from continuing with hiii reassumption of the governorship.
the evidence of culpability is strong, when the gravity of the offense s warrants, or when the continuance
in office of the respondent coul influence the witnesses or pose a threat to the safety and integrity the Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution fiffl
records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a
the start of said suspension. political question which is beyond judicial review.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without
prejudice to the continuation the proceedings against him until its termination. (Emphasis supplied) Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in
which the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled
It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion of the petition is rule that when the issue involved concerns the validity of such discretionary powers or whether said powers are
hereon der quoted as follows: within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code (Sec. such review does not constitute a modification or correction of the act of the President, nor does it constitute
66, Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the Office of the President in interference with the functions of the President. In this connection, the case of Tanada and Macapagal vs.
an administrative suspension of local officials shall be immediately executory without prejudice to Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote:
appeal to appropriate courts, Petitioner Llamas took his oath of office as acting govemor. Under the Elsewhere in this treatise the well-known and well-established principle is considered that it is not within
administrative suspension order, Llamas had up to May 31 [sic 29] 1991 as acting governor; the province of the courts to pass judgment upon the policy of legislative or executive action. Where,
8. A copy of this oath of office is attached and made a part hereof as Annex B; therefore, discretionary powers are granted by the Consfitution or by statute, the manner in which those
9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos of the powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only
newly created Department Interior and Local Government, as shown by the lower portion Annex B, and with the question as to the existence and extent of these discretionary powers.
by a picture of the oathtaking itself, attached and mad a part hereof as Annex B-1; As distinguished from the judicial, the legislative and executive departments are spoken of as the
10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown Llamas' political departments of government because in very many cases their action is necessarily dictated by
oath of office. During meeting, held in the presence of all department heads at the provi cial capitol and considerations of public or political policy. These considerations of public or political policy of course will
in the presence of various local government offici and representatives of the media, Ocampo agreed to not permit the legislature to violate constitutional provisions, or the executive to exercise authority not
turn over reigns of the provincial government to Petitioner; granted him by the Constitution or by statute, but, within these limits, they do permit the departments,
11. In fact, Ocampo had asked the department heads and all other officials of the provincial government separately or together, to recognize that a certain set of facts exists or that a given status exists, and
of Tarlac to extend their cooperation to Llamas, during the ninety days that the latter would assume the these determinations, together with the consequences that flow therefrom, may not be traversed in the
governorship; courts. (Willoughby on the Constitution of the United States, Vol. 3, p. 1326).
12. And, as if this was not enough, Ocampo even made announcements in the media that he was xxx xxx xxx
allowing Petitioner Llamas to perform his functions as acting governor at the Office of the Govern at the
Capitol where he (Ocampo) used to hold office (true enough Ocampo has subsequently allowed Llamas What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter
to hold office at the of the Governor, with Ocampo even escorting the acting therein last March 4, 1991); which is to be exercised by the people in their primary political capacity, or that it has been specifically
delegated to some other department or particular officer of the goverrunent, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470,
 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA 516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 26, 1991 affirming the DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of
111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion authority and which suspended him for ninety (90) days) final.
determine whether it will pass a law or submit a proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not merely because they involve political question, but Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain
because they are matters which the people have by the Constitute delegated to the Legislature. The petitioner's view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does
Governor may exercise the powers delegated to him, free from judicial control, so long as he observes not distinguish between which cases executive clemency may be exercised by the President, with the sole
the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal
not primarily because they are of a political nature, but because the Constitution and laws have placed cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of
the particular matter under his control. But every officer under a constitutional government must act Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment
according to law and subject him to the restraining and controlling power of the people, acting through are automatically excluded inasmuch as the same do not necessarily involve criminal offenses.
the courts, as well as through the executive or the Legislature. One department is just as representative
as the other, and the judiciary the department which is charged with the special duty of determinining In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant
the limitations which the law places upon all official action. The recognition of this principle, unknown executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves,
except in Great Britain and America, is necessary, to "the end that the government may be one of laws commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she
and not men" — words which Webster said were the greatest contained in any written constitutional grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.
document.
A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in
Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded jurisdiction" to administrative cases.
review the decisions of the other branches and agencies of the government to determine whether or not they
have acted within the bounds of the Constitution (See Art. VIII, Sec. 1, Constitution). "Yet, in the exercise thereof, Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative
the Court is to merely check whether or not the govermental branch or agency has gone beyond the penalties or disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and
constitutional limits of its jurisdiction, not that it erred or has a different view" (Co vs. Electoral Tribunal of the conditions as he may impose in the interest of the service."
House of Representatives & Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House of
Representatives & Ong, G.R Nos. 92202-03, July 30, 1991). During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed
amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for
In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to violation of corrupt practices laws may be limited by legislation."The Constitutional Commission, however, voted
decide whether under the Constitution the President may grant executive clemency in administrative cases. We to remove the amendment, since it was in derogation of the powers of the President. As Mr. Natividad stated:
must not overlook the fact that the exercise by the President of her power of executive clemency is subject to I am also against this provision which will again chip more powers from the President. In case of other
constitutional l'um'tations. We will merely check whether the particular measure in question has been in criminals convicted in our society we extend probation to them while in this case, they have already
accordance with law. In so doing, We will not concern ourselves with the reasons or motives which actuate the been convicted and we offer mercy. The only way we can offer mercy to them is through this executive
President as such is clearly beyond our power of judicial review. clemency extended to them by the President. If we still close this avenue to them, they would be
prejudiced even worse than the murderers and the more vicious killers in our society ....
Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on
Article VII, Section 19 of the Constitution which reads: The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however,
Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President the Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations
may grant reprieves, commu tations, and pardons, and remit fines and forfeitures, after conviction by on his clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525)
final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the members of It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency
the Congress. (Emphasis supplied) powers may not be limited in terms of coverage, except as already provided in the Constitution, that is, "no
According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be
cases, and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in granted by the President without the favorable recommendation of the COMELEC" (Article IX, C, Section 5,
an administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Constitution). If those already adjudged guilty criminally in court may be pardoned, those adjudged guilty
Petition). Petitioner, however, describes in his very own words, respondent governor as one who has been administratively should likewise be extended the same benefit.
"convicted in an administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction"
may be used either in a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt,
536, We ruled: but the Constitution grants to the President the power to pardon the act done by the proved criminal and in the
For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively process exempts him from punishment therefor. On the other hand, in administrative cases, the quantum of
or ... criminally. In either case, his culpability must be established ... evidence required is mere substantial evidence to support a decision, not to mention that as to the admissibility
of evidence, administrative bodies are not bound by the technical and rigid rules of admissibility prescribed in
It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was criminal cases. It will therefore be unjust and unfair for those found guilty administratively of some charge if the
withdrawn in his petition for the grant of executive clemency, which fact rendered the Resolution dated February same effects of pardon or executive clemency cannot be extended to them, even in the sense of modifying a
decision to subserve the interest of the public. (p. 34, Comment of public respondent)
 Consequently, respondent governor's acceptance of the presidential pardon "serves to put an end" to the motion
Of equal importance are the following provisions of Executive Order No. 292, otherwise known as the for reconsideration and renders the subject decision final, that of the period already served.
Administrative Code of 1987, Section I, Book III of which provides:
SECTION 1. Power of Control. — The President shall have control of all the executive departments, Finally, petitioner's argument that his constitutional rights to due process were violated is uruneritorious. Pardon
bureaus, and offices. He shall ensure that the laws be faithfully executed. has been defined as "the private, though official, act of the executive magistrate, delivered to the individual for
SECTION 38. Definition of Administrative Relationships. — Unless otherwise expressly stated in the whose benefit it is intended and not communicated officially to the court. ..." (Bernas, The Constitution of the
Code or in other laws defining the special relationships of particular agencies, administrative Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming
relationships shall be categorized and defined as follows: that petitioner was not notified of the subject pardon, it is only because said notice is unnecessary. Besides,
petitioner's claim that respondent governor has not begun serve sentence is belied by his very own factual
(1) Supervision and Control. — Supervision and control shall include authority to act directly whenever a specific allegations in his petition, more particularly that he served as Acting Governor of Tarlac effective from the date he
function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the took his Oath of Office on February 28, 1991 up to the time respondent govemor reassumed the governorship of
commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; Tarlac on May 21, 1991 (par. 30 petition). It is, therefore, error to say that private respondent did not serve any
determine priorities in the execution of plans and programs. Unless a different meaning is explicitly provided in portion of the 90-day suspension meted upon him.
the specific law governing the relationship of particular agencies the word "control" shall encompass supervision
and control as defined in this paragraph. ... (emphasis supplied) We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction committed by public
respondent.
The disciplinary authority to investigate, suspend, and remove provincial or city officials devolves at the first
instance on the Department of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and ultimately on WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act arbitrarily or with
the President (Sec. 66). Implicit in this authority, however, is the "supervision and control" power of the President abuse, much less grave abuse of discretion in issuing the May 15, 1991 Resolution granting on the grounds
to reduce, if circumstances so warrant, the imposable penalty or to modify the suspension or removal order, even mentioned therein, executive clemency to respondent governor and that, accordingly, the same is not
"in the sense" of granting executive clemency. "Control," within the meaning of the Constitution, is the power to unconstitutional (without prejudice to criminal proceedings which have been filed or may be filed against
substitute one's own judgment for that of a subordinate. Under the doctrine of Qualified Political Agency, the respondent governor), and (2) DENYING the rest of the prayers in the petition for being unmeritorious, moot and
different executive departments are mere adjuncts of the President. Their acts are presumptively the acts of the academic. No costs.
President until countermanded or reprobated by her (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers
Union vs. Minister of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it is urged by the SO ORDERED.
Solicitor General that in the present case, the President, in the exercise of her power of supervision and control
over all executive departments, may substitute her decision for that of her subordinate, most especially where
the basis therefor would be to serve the greater public interest. It is clearly within the power of the President not
only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinate against an
erring public official, where a reconsideration of the facts alleged would support the same. It is in this sense that
the alleged executive clemency was granted, after adducing reasons that subserve the public interest. — "the
relative success of . . . livelihood loan program." (pp. 39-40, Comment of public respondent)

We wish to stress however that when we say the President can grant executive clemency in administrative
cases, We refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative
branches of the government.
Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for reconsideration and the SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088
same may be regarded as implicitly resolved, not only because of its withdrawal but also because of the - versus - Garcia, JJ.
executive clemency which in effect reduced the penalty, conformably with the power of "control." OFFICE OF THE EXECUTIVE
SECRETARY, represented by
On petitioner's argument that private respondent's motion for reconsideration has abated the running of the Promulgated:
reglementary period for finality of judgment in O.P. Case No. 4480 (that is, there being no final judgment to speak July 6, 2005
of, the pardon granted was premature and of no effect, We reiterate the doctrine that upon acceptance of a Respondents.
presidential pardon, the grantee is deemed to have waived any appeal which he may have filed. Thus, it was x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
held that: DECISION
The commutation of the penalty is impressed with legal significance. That is an exercise of executive
clemency embraced in the pardoning power. According to the Constitution: "The President may except PUNO J.:
in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, This is a petition for mandamus filed by petitioners to compel the
with the concurrence of the Batasang Pambansa, grant amnesty. "Once granted, it is binding and Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome
effective. It serves to put an end to this appeal." (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with
190. 196). (See also Peo v. Crisola, 129 SCRA 13) Section 21, Article VII of the 1987 Constitution.
 The Rome Statute established the International Criminal Court which shall have the power to exercise The question in standing is whether a party has alleged such a personal stake in the outcome of the
its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
to the national criminal jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against humanity, war court so largely depends for illumination of difficult constitutional questions.[10]
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 We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the
Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. [3] Its provisions, however, require that it country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-
be subject to ratification, acceptance or approval of the signatory states.[4] 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
Petitioners filed the instant petition to compel the respondents the Office of theExecutive Secretary and intended to complement national criminal laws and courts. Sufficient remedies are available under our national
the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for laws to protect our citizens against human rights violations and petitioners can always seek redress for any
ratification. abuse in our domestic courts.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international As regards Senator Pimentel, it has been held that to the extent the powers of Congress are impaired,
law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of so is the power of each member thereof, since his office confers a right to participate in the exercise of the
the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. powers of that institution.[11] Thus, legislators have the standing to maintain inviolate the prerogatives, powers
Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any
and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the official action which they claim infringes their prerogatives as legislators. The petition at bar invokes the power of
states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the
treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.[5] 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
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the to assert such authority of the Senate.
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 We now go to the substantive issue.The core issue in this petition for mandamus is whether the
transmit the Rome Statute to the Senate for concurrence. 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
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully signature of the President.
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 We rule in the negative.
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 our system of government, the President, being the head of state, is regarded as the sole organ and authority
in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be in external relations and is the countrys sole representative with foreign nations.[12] As the chief architect of
performed.[7] The Court will exercise its power of judicial review only if the case is brought before it by a party foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the
who has the legal standing to raise the constitutional or legal question. Legal standing means a personal and President is vested with the authority to deal with foreign states and governments, extend or withhold
substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
government act that is being challenged. The term interest is material interest, an interest in issue and to be relations.[13] In the realm of treaty-making, the President has the sole authority to negotiate with other states.
affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution
[8]
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
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members
suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of of the Senate. The 1935 and the 1973 Constitution also required the concurrence by the legislature to the
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Establishment of the International Criminal Court which is composed of individuals and corporate entities Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the
dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a Members of the Senate, to make treaties xxx.
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 Section 14 (1) Article VIII of the 1973 Constitution stated:
pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
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 The participation of the legislative branch in the treaty-making process was deemed essential to provide a check
University of the Philippines College of Law who are suing as taxpayers. 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 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of
nations pursuit of political maturity and growth.[15] 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
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for
power to ratify treaties belongs to the Senate. ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to
We disagree. 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:
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, Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an
and exchange of the instruments of ratification. The treaty may then be submitted for Executive Agreement. The domestic requirements for the entry into force of a treaty or an
registration and publication under the U.N. Charter, although this step is not essential to the executive agreement, or any amendment thereto, shall be as follows:
validity of the agreement as between the parties.
A. Executive Agreements.
Negotiation may be undertaken directly by the head of state but he now usually assigns this i. All executive agreements shall be transmitted to the Department
task to his authorized representatives. These representatives are provided with credentials of Foreign Affairs after their signing for the preparation of the
known as full powers, which they exhibit to the other negotiators at the start of the formal ratification papers. The transmittal shall include the highlights of the
discussions. It is standard practice for one of the parties to submit a draft of the proposed agreements and the benefits which will accrue to the Philippines
treaty which, together with the counter-proposals, becomes the basis of the subsequent arising from them.
negotiations. The negotiations may be brief or protracted, depending on the issues involved, ii. The Department of Foreign Affairs, pursuant to the endorsement
and may even collapse in case the parties are unable to come to an agreement on the points by the concerned agency, shall transmit the agreements to the
under consideration. President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of
If and when the negotiators finally decide on the terms of the treaty, the same is opened Foreign Affairs for appropriate action.
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 B. Treaties
indicate the final consent of the state in cases where ratification of the treaty is i. All treaties, regardless of their designation, shall comply with the
required. The document is ordinarily signed in accordance with the alternat, that is, each of requirements provided in sub-paragraph[s] 1 and 2, item A
the several negotiators is allowed to sign first on the copy which he will bring home to his own (Executive Agreements) of this Section. In addition, the Department
state. of Foreign Affairs shall submit the treaties to the Senate of the
Philippines for concurrence in the ratification by the President. A
Ratification, which is the next step, is the formal act by which a state confirms and accepts the certified true copy of the treaties, in such numbers as may be
provisions of a treaty concluded by its representatives. The purpose of ratification is to required by the Senate, together with a certified true copy of the
enable the contracting states to examine the treaty more closely and to give them an ratification instrument, shall accompany the submission of the
opportunity to refuse to be bound by it should they find it inimical to their interests. It is treaties to the Senate.
for this reason that most treaties are made subject to the scrutiny and consent of a ii. Upon receipt of the concurrence by the Senate, the Department
department of the government other than that which negotiated them. of Foreign Affairs shall comply with the provision of the treaties in
effecting their entry into force.
xxx 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
The last step in the treaty-making process is the exchange of the instruments of treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires
ratification, which usually also signifies the effectivity of the treaty unless a different date has that the signature of the representatives of the states be subject to ratification, acceptance or approval of the
been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved
is embodied in the treaty, the instrument is deemed effective upon its signature. [16] [emphasis by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the
supplied] provisions of such treaty. After the treaty is signed by the states 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
Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification. It ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion
should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of
instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held
representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.
[18]
confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on
executive act, undertaken by the head of the state or of the government. [17] Thus, Executive Order No. 459
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. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia
Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON,
DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE
PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE,
SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents
DECISION

BUENA, J.:
 Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are Definitions
issues relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the As used in this Agreement, United States personnel means United States military and civilian personnel
Philippines and the United States of America -the Visiting Forces Agreement. temporarily in the Philippines in connection with activities approved by the Philippine Government.
Within this definition:
The antecedents unfold. 1. The term military personnel refers to military members of the United States Army, Navy, Marine
On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement Corps, Air Force, and Coast Guard.
which formalized, among others, the use of installations in the Philippine territory by United States military 2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents
personnel. To further strengthen their defense and security relationship, the Philippines and the United States in the Philippines and who are employed by the United States armed forces or who are
entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any accompanying the United States armed forces, such as employees of the American Red Cross
external armed attack on their territory, armed forces, public vessels, and aircraft.[1] and the United Services Organization.
Article II
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the Respect for Law
United States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to
Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political
would have extended the presence of US military bases in the Philippines. [2] With the expiration of the RP-US activity in the Philippines. The Government of the United States shall take all measures within its authority
Military Bases Agreement, the periodic military exercises conducted between the two countries were held in to ensure that this is done.
abeyance. Notwithstanding, the defense and security relationship between the Philippines and the United States Article III
of America continued pursuant to the Mutual Defense Treaty. Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States personnel and their
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia departure from the Philippines in connection with activities covered by this agreement.
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino 2. United States military personnel shall be exempt from passport and visa regulations upon entering and
Jr., to exchange notes on the complementing strategic interests of the United States and the Philippines in the departing the Philippines.
Asia-Pacific region. Both sides discussed, among other things, the possible elements of the Visiting Forces 3. The following documents only, which shall be presented on demand, shall be required in respect of
Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in United States military personnel who enter the Philippines:
turn resulted to a final series of conferences and negotiations [3] that culminated in Manila on January 12 and 13, (a) personal identity card issued by the appropriate United States authority showing full name, date of
1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public birth, rank or grade and service number (if any), branch of service and photograph;
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998. (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
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified (c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and
the VFA.[4] 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
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, quarantinable diseases. Any quarantine inspection of United States aircraft or United States
officially transmitted to the Senate of the Philippines,[5] the Instrument of Ratification, the letter of the vessels or cargoes thereon shall be conducted by the United States commanding officer in
President[6] and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The accordance with the international health regulations as promulgated by the World Health
Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Organization, and mutually agreed procedures.
Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration 4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand,
and recommendation. Thereafter, joint public hearings were held by the two Committees.[7] 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
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443[8] recommending the territory, the United States authorities shall be responsible for receiving the person concerned within its
concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its own territory or otherwise disposing of said person outside of the Philippines.
implementation. Debates then ensued. Article IV
Driving and Vehicle Registration
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) 1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the
vote[9] of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.[10] appropriate United States authority to United States personnel for the operation of military or official
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent vehicles.
Secretary Siazon and United States Ambassador Hubbard. 2. Vehicles owned by the Government of the United States need not be registered, but shall have
appropriate markings.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the Article V
circumstances and conditions under which US Armed Forces and defense personnel may be present in the Criminal Jurisdiction
Philippines, and is quoted in its full text, hereunder: 1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect to
Article I 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 5. United States military authorities shall promptly notify Philippine authorities of the arrest or
criminal and disciplinary jurisdiction conferred on them by the military law of the United States detention of United States personnel who are subject of Philippine primary or exclusive
over United States personnel in the Philippines. jurisdiction. Philippine authorities shall promptly notify United States military authorities of the
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with arrest or detention of any United States personnel.
respect to offenses, including offenses relating to the security of the Philippines, 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
punishable under the laws of the Philippines, but not under the laws of the United States. shall immediately reside with United States military authorities, if they so request, from the
(b) United States authorities exercise exclusive jurisdiction over United States personnel with commission of the offense until completion of all judicial proceedings. United States military
respect to offenses, including offenses relating to the security of the United States, authorities shall, upon formal notification by the Philippine authorities and without delay, make
punishable under the laws of the United States, but not under the laws of the Philippines. such personnel available to those authorities in time for any investigative or judicial proceedings
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to relating to the offense with which the person has been charged in extraordinary cases, the
security means: Philippine Government shall present its position to the United States Government regarding
(1) treason; custody, which the United States Government shall take into full account. In the event Philippine
(2) sabotage, espionage or violation of any law relating to national defense. judicial proceedings are not completed within one year, the United States shall be relieved of any
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply: obligations under this paragraph. The one-year period will not include the time necessary to
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses appeal. Also, the one-year period will not include any time during which scheduled trial procedures
committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), are delayed because United States authorities, after timely notification by Philippine authorities to
and 3 (b) of this Article. arrange for the presence of the accused, fail to do so.
(b) United States military authorities shall have the primary right to exercise jurisdiction over United 7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
States personnel subject to the military law of the United States in relation to. other in the carrying out of all necessary investigation into offenses and shall cooperate in
(1) offenses solely against the property or security of the United States or offenses solely providing for the attendance of witnesses and in the collection and production of evidence,
against the property or person of United States personnel; and including seizure and, in proper cases, the delivery of objects connected with an offense.
(2) offenses arising out of any act or omission done in performance of official duty. 8. When United States personnel have been tried in accordance with the provisions of this Article and
(c) The authorities of either government may request the authorities of the other government to have been acquitted or have been convicted and are serving, or have served their sentence, or
waive their primary right to exercise jurisdiction in a particular case. have had their sentence remitted or suspended, or have been pardoned, they may not be tried
(d) Recognizing the responsibility of the United States military authorities to maintain good order again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent
and discipline among their forces, Philippine authorities will, upon request by the United States, United States military authorities from trying United States personnel for any violation of rules of
waive their primary right to exercise jurisdiction except in cases of particular importance to the discipline arising from the act or omission which constituted an offense for which they were tried by
Philippines. If the Government of the Philippines determines that the case is of particular Philippine authorities.
importance, it shall communicate such determination to the United States authorities within 9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
twenty (20) days after the Philippine authorities receive the United States request. authorities, they shall be accorded all procedural safeguards established by the law of the
(e) When the United States military commander determines that an offense charged by authorities Philippines. At the minimum, United States personnel shall be entitled:
of the Philippines against United states personnel arises out of an act or omission done in the (a) To a prompt and speedy trial;
performance of official duty, the commander will issue a certificate setting forth such (b) To be informed in advance of trial of the specific charge or charges made against them and to
determination. This certificate will be transmitted to the appropriate authorities of the have reasonable time to prepare a defense;
Philippines and will constitute sufficient proof of performance of official duty for the purposes of (c) To be confronted with witnesses against them and to cross examine such witnesses;
paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines (d) To present evidence in their defense and to have compulsory process for obtaining witnesses;
believes the circumstances of the case require a review of the duty certificate, United States (e) To have free and assisted legal representation of their own choice on the same basis as
military authorities and Philippine authorities shall consult immediately. Philippine authorities at nationals of the Philippines;
the highest levels may also present any information bearing on its validity. United States (f) To have the service of a competent interpreter; and
military authorities shall take full account of the Philippine position. Where appropriate, United (g) To communicate promptly with and to be visited regularly by United States authorities, and to
States military authorities will take disciplinary or other action against offenders in official duty have such authorities present at all judicial proceedings. These proceedings shall be public
cases, and notify the Government of the Philippines of the actions taken. unless the court, in accordance with Philippine laws, excludes persons who have no role in the
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the proceedings.
authorities of the other government as soon as possible. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried
(g) The authorities of the Philippines and the United States shall notify each other of the disposition out in facilities agreed on by appropriate Philippine and United States authorities. United States
of all cases in which both the authorities of the Philippines and the United States have the right Personnel serving sentences in the Philippines shall have the right to visits and material
to exercise jurisdiction. assistance.
4. Within the scope of their legal competence, the authorities of the Philippines and United States 11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction,
shall assist each other in the arrest of United States personnel in the Philippines and in handling and shall not be subject to the jurisdiction of Philippine military or religious courts.
them over to authorities who are to exercise jurisdiction in accordance with the provisions of this Article VI
article. Claims
 1. Except for contractual arrangements, including United States foreign military sales letters of offer Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-
and acceptance and leases of military equipment, both governments waive any and all claims governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein
against each other for damage, loss or destruction to property of each others armed forces or for respondents grave abuse of discretion in ratifying the agreement.
death or injury to their military and civilian personnel arising from activities to which this agreement
applies. We have simplified the issues raised by the petitioners into the following:
2. For claims against the United States, other than contractual claims and those to which paragraph 1 I
applies, the United States Government, in accordance with United States law regarding foreign Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
claims, will pay just and reasonable compensation in settlement of meritorious claims for damage, constitutionality of the VFA?
loss, personal injury or death, caused by acts or omissions of United States personnel, or II
otherwise incident to the non-combat activities of the United States forces. Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the
Article VII Constitution?
Importation and Exportation III
1. United States Government equipment, materials, supplies, and other property imported into or Does the VFA constitute an abdication of Philippine sovereignty?
acquired in the Philippines by or on behalf of the United States armed forces in connection with a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other personnel?
similar charges. Title to such property shall remain with the United States, which may remove such b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or
property from the Philippines at any time, free from export duties, taxes, and other similar charges. higher?
The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar IV
charges which would otherwise be assessed upon such property after importation into, or Does the VFA violate:
acquisition within, the Philippines. Such property may be removed from the Philippines, or a. the equal protection clause under Section 1, Article III of the Constitution?
disposed of therein, provided that disposition of such property in the Philippines to persons or b. the Prohibition against nuclear weapons under Article II, Section 8?
entities not entitled to exemption from applicable taxes and duties shall be subject to payment of c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the
such taxes, and duties and prior approval of the Philippine Government. equipment, materials supplies and other properties imported into or acquired in the Philippines by,
2. Reasonable quantities of personal baggage, personal effects, and other property for the personal or on behalf, of the US Armed Forces?
LOCUS STANDI
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. At the outset, respondents challenge petitioners standing to sue, on the ground that the latter have not
Transfers to persons or entities in the Philippines not entitled to import privileges may only be shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or will sustain
made upon prior approval of the appropriate Philippine authorities including payment by the direct injury as a result of the operation of the VFA. [12] Petitioners, on the other hand, counter that the validity or
recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. invalidity of the VFA is a matter of transcendental importance which justifies their standing.[13]
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. A party bringing a suit challenging the constitutionality of a law, act, or statute must show not only that the
Article VIII law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct
Movement of Vessels and Aircraft injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. He must show
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is
of the Government of the Philippines in accordance with procedures stipulated in implementing about to be subjected to some burdens or penalties by reason of the statute complained of.[14]
arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained,
of the Government of the Philippines. The movement of vessels shall be in accordance with or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers,
international custom and practice governing such vessels, and such agreed implementing petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending powers.
[15]
arrangements as necessary. On this point, it bears stressing that a taxpayers suit refers to a case where the act complained of directly
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be involves the illegal disbursement of public funds derived from taxation. [16] Thus, in Bugnay Const. &
subject to the payment of landing or port fees, navigation or over flight charges, or tolls or other Development Corp. vs. Laron[17], we held:
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 x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment
Philippines. Vessels owned or operated by the United States solely on United States Government or entitled to the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he
non-commercial service shall not be subject to compulsory pilotage at Philippine ports. must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by
Article IX taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or
Duration and Termination contract. It is not sufficient that he has merely a general interest common to all members of the public.
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 Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any
force. This agreement shall remain in force until the expiration of 180 days from the date on which either allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers,
party gives the other party notice in writing that it desires to terminate the agreement. have no legal standing to assail the legality of the VFA.
 Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
not possess the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:
Association vs. Hon. Salvador Enriquez, [18] sustained the legal standing of a member of the Senate and the No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all
House of Representatives to question the validity of a presidential veto or a condition imposed on an item in an the Members of the Senate.
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. Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners pointed to Philippines except under a treaty duly concurred in by the senate and, when the Congress so requires, ratified by
provisions of the VFA which allegedly impair their legislative powers, petitioners failed however to sufficiently a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a
show that they have in fact suffered direct injury. treaty by the other contracting State.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As Section 21, Article VII deals with treatise or international agreements in general, in which case, the
aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or
board resolution from its Board of Governors authorizing its National President to commence the present action. international agreement, valid and binding on the part of the Philippines. This provision lays down the general
[19]
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
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and appellation, requires the concurrence of the Senate to be valid and effective.
takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,[20] where we had
occasion to rule: 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
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders is only one of the requisites to render compliance with the constitutional requirements and to consider the
issued by President Quirino although they were involving only an indirect and general interest shared in common agreement binding on the Philippines. Section 25, Article XVIII further requires that foreign military bases, troops,
with the public. The Court dismissed the objection that they were not proper parties and ruled or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by
that transcendental importance to the public of these cases demands that they be settled promptly and a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and
definitely, brushing aside, if we must, technicalities of procedure. We have since then applied the exception recognized as such by the other contracting state.
in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175
SCRA 343). (Underscoring Supplied) 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
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs. Singson, deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause No treaty x x x, and
[22]
and Basco vs. Phil. Amusement and Gaming Corporation,[23] where we emphatically held: Section 25 contains the phrase shall not be allowed. Additionally, in both instances, the concurrence of the
Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under Senate is indispensable to render the treaty or international agreement valid and effective.
the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and
within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether
Court has brushed aside technicalities of procedure and has taken cognizance of this petition. x x x 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.
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 On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel
where there is no direct injury to the party claiming the right of judicial review. 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,
Although courts generally avoid having to decide a constitutional question based on the doctrine of movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.
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. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases,
APPLICABLE CONSTITUTIONAL PROVISION
troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the
One focal point of inquiry in this controversy is the determination of which provision of the Constitution provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of
applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners determining the number of votes required to obtain the valid concurrence of the Senate, as will be further
argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of discussed hereunder.
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 It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
temporary visits of United States personnel engaged in joint military exercises. 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, but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military
the particular enactment must be operative, and the general enactment must be taken to affect only such cases headquarters.
within its general language which are not within the provision of the particular enactment.[26]
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated: complied with when the Senate gave its concurrence to the VFA.
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 Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a
theoretical application to a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. national referendum; and (c) recognized as a treaty by the other contracting state.
vs. Baluyot, 83 SCRA 38).
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution,
for the reason that there is no permanent placing of structure for the establishment of a military base. On this whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section
score, the Constitution makes no distinction between transient and permanent. Certainly, we find nothing in 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national
Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the referendum being unnecessary since Congress has not required it.
Philippines.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the
distinguish- Ubi lex non distinguit nec nos distinguire debemos. Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be duly concurred in by the
Senate.
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 Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
constitutional provision reveals that the proscription covers foreign military bases, troops, or facilities. Stated clearly required so that the concurrence contemplated by law may be validly obtained and deemed
differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the
established. The clause does not refer to foreign military bases, troops, or facilitiescollectively but treats them as instant case-be duly concurred in by the Senate, it is very true however that said provision must be related and
separate and independent subjects. The use of comma and the disjunctive word or clearly signifies viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires
disassociation and independence of one thing from the others included in the enumeration, [28] such that, the that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the members of
provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of
Section 25, Article XVIII. 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
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to
Constitutional Commission, is consistent with this interpretation: concur with the treaty-the VFA in the instant case.
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members,
country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities- favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned
or could the treaty entered into cover only one or two? in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the voting was made,[31] will not alter in any significant way the circumstance that more than two-thirds of the
requirement will be the same. members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators,
bases but merely troops? or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving
FR. BERNAS. Yes. concurrence to the subject treaty.
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 Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now
want to cover everything.[29] (Underscoring Supplied) pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of
America.
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 Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII, means that
huge sea vessels that can stay afloat in the sea even for months and years without returning to their home the VFA should have the advice and consent of the United States Senate pursuant to its own constitutional
country. These military warships are actually used as substitutes for a land-home base not only of military aircraft 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 [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp.
is binding on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V,
the United States of America. According to respondents, the VFA, to be binding, must only be accepted as a pp. 390-407). (Italics Supplied) (Emphasis Ours)
treaty by the United States.
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and
This Court is of the firm view that the phrase recognized as a treaty means that the other contracting highly-instructive:
party accepts or acknowledges the agreement as a treaty.[32] To require the other contracting state, the United MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned,
States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its that is entirely their concern under their own laws.
Constitution,[33] is to accord strict meaning to the phrase. 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]
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 The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
prevails. Its language should be understood in the sense they have in common use.[34] 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
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.
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 Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate
as a treaty. should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied thereunder.
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 Ratification is generally held to be an executive act, undertaken by the head of the state or of the
instrument or in two or more related instruments, and whatever its particular designation. [36] There are many other government, as the case may be, through which the formal acceptance of the treaty is proclaimed. [43] A State
terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound
arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise
writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included established that the negotiating States agreed that ratification should be required, (c) the representative of the
under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to
more than mere description.[37] ratification appears from the full powers of its representative, or was expressed during the negotiation.[44]

Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
in the present Convention are without prejudice to the use of those terms, or to the meanings which may be legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the
given to them in the internal law of the State. ratification.[45]

Thus, in international law, there is no difference between treaties and executive agreements in their binding With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes
effect upon states concerned, as long as the negotiating functionaries have remained within their powers. between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part,
[38]
International law continues to make no distinction between treaties and executive agreements: they are under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section
equally binding obligations upon nations.[39] 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,
In our jurisdiction, we have recognized the binding effect of executive agreements even without the cooperation and amity with all nations.
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, [40] we had
occasion to pronounce: As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
x x x the right of the Executive to enter into binding agreements without the necessity of subsequent the conduct of its international relations. While the international obligation devolves upon the state and not upon
congressional approval has been confirmed by long usage. From the earliest days of our history we have any particular branch, institution, or individual member of its government, the Philippines is nonetheless
entered into executive agreements covering such subjects as commercial and consular relations, most-favored- responsible for violations committed by any branch or subdivision of its government or any official thereof. As an
nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the integral part of the community of nations, we are responsible to assure that our government, Constitution and
settlement of claims. The validity of these has never been seriously questioned by our courts. laws will carry out our international obligation. [47] Hence, we cannot readily plead the Constitution as a convenient
xxxxxxxxx excuse for non-compliance with our obligations, duties and responsibilities under international law.

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law
executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from
also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as
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 an excuse for failure to perform this duty.[48]
Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law
 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 As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus, once
servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of the Senate[56] performs that power, or exercises its prerogative within the boundaries prescribed by the
positive international law, supported by the jurisprudence of international tribunals.[49] Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less
NO GRAVE ABUSE OF DISCRETION
grave abuse thereof.Corollarily, the Senate, in the exercise of its discretion and acting within the limits of such
In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a power, may not be similarly faulted for having simply performed a task conferred and sanctioned by no less than
task conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of the fundamental law.
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 For the role of the Senate in relation to treaties is essentially legislative in character; [57] the Senate, as an
Section 21, Article VII of the Constitution. 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
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the
judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished
manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates,
of positive duty enjoined or to act at all in contemplation of law.[50] through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable
toward our nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters
By constitutional fiat and by the intrinsic nature of his office, the President, as he ad of State, is the sole pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the
nations foreign policy; his dominance in the field of foreign relations is (then) conceded. [51] Wielding vast powers In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the
an influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether."[52] 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
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of
the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this the three political branches of government may exercise the powers exclusively and essentially conferred to it by
light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain law.
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 WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.
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 SO ORDERED.
principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly struck
down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.

It is the Courts considered view that the President, in ratifying the VFA and in submitting the same to the
Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is BAYAN MUNA, as represented by Rep. SATUR G.R. No. 159618
of no moment that the President, in the exercise of his wide latitude of discretion and in the honest belief that the OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA Promulgated:
VFA falls within the ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for L. MAZA, February 1, 2011
concurrence under the aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent Petitioner,
and whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and referring - versus -
the same to the Senate for the purpose of complying with the concurrence requirement embodied in the ALBERTO ROMULO, in his capacity as Executive
fundamental law. In doing so, the President merely performed a constitutional task and exercised a prerogative Secretary, and BLAS F. OPLE, in his capacity as
that chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for Secretary of Foreign Affairs,
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Respondents.
Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty of committing an x-----------------------------------------------------------------------------------------x
abuse of discretion in some patent, gross, and capricious manner. DECISION

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial VELASCO, JR., J.:
inquiry into areas normally left to the political departments to decide, such as those relating to national security, it The Case
has not altogether done away with political questions such as those which arise in the field of foreign relations. This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the
[54]
The High Tribunals function, as sanctioned by Article VIII, Section 1, is merely (to) check whether or not the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States
governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or of America (USA).
has a different view. In the absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction,
there is no occasion for the Court to exercise its corrective powerIt has no power to look into what it thinks is The Facts
apparent error.[55]
 Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized the third country to any international tribunal, unless such tribunal has been established by the
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the UN Security Council, absent the express consent of the Government of the [US].
period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive 5. This Agreement shall remain in force until one year after the date on which one
Secretary.[2] party notifies the other of its intent to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act occurring, or any allegation arising,
Rome Statute of the International Criminal Court before the effective date of termination.
Having a key determinative bearing on this case is the Rome Statute [3] establishing the International
Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
international concern x x x and shall be complementary to the national criminal jurisdictions.[4] The serious crimes agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic
adverted to cover those considered grave under international law, such as genocide, crimes against humanity, notes constituted a legally binding agreement under international law; and that, under US law, the said
war crimes, and crimes of aggression.[5] agreement did not require the advice and consent of the US Senate.[10]

On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
which, by its terms, is subject to ratification, acceptance or approval by the signatory states. [6] As of the filing of ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force
the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and effect.
and concurrence process. The Philippines is not among the 92.
For their part, respondents question petitioners standing to maintain a suit and counter that
RP-US Non-Surrender Agreement the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for its
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of the Agreement.
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP. The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreementaims [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
to protect what it refers to and defines as persons of the RP and US from frivolous and harassment suits that ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
might be brought against them in international tribunals. [8] It is reflective of the increasing pace of the strategic RATIFICATION BY THE PHILIPPINE SENATE.
security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements A. Whether by entering into the x x x Agreement Respondents gravely abused their
have been effected by and between the US and 33 other countries.[9] discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try
The Agreement pertinently provides as follows: persons as defined in the x x x Agreement, x x x or literally any conduit of American
1. For purposes of this Agreement, persons are current or former Government interests, who have committed crimes of genocide, crimes against humanity, war
officials, employees (including contractors), or military personnel or nationals of one Party. crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.
2. Persons of one Party present in the territory of the other shall not, absent the
express consent of the first Party, B. Whether after the signing and pending ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of
(a) be surrendered or transferred by any means to any international tribunal for any good faith to refrain from doing all acts which would substantially impair the value of
purpose, unless such tribunal has been established by the UN Security Council, the undertaking as signed.
or C. Whether the x x x Agreement constitutes an act which defeats the object and
(b) be surrendered or transferred by any means to any other entity or third country, or purpose of the Rome Statute of the International Criminal Court and contravenes the
expelled to a third country, for the purpose of surrender to or transfer to any obligation of good faith inherent in the signature of the President affixed on the Rome
international tribunal, unless such tribunal has been established by the UN Statute of the International Criminal Court, and if so whether the x x x Agreement is
Security Council. void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave
3. When the [US] extradites, surrenders, or otherwise transfers a person of the abuse of discretion amounting to lack or excess of jurisdiction in connection with its
Philippines to a third country, the [US] will not agree to the surrender or transfer of that person execution.
by the third country to any international tribunal, unless such tribunal has been established by
the UN Security Council, absent the express consent of the Government of the Republic of the II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
Philippines [GRP]. CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL
[USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by LAW.
 III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT direct and personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e.,
THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF to ascertain that the Agreement did not go against established national policies, practices, and obligations
THE SENATE x x x.[11] bearing on the States obligation to the community of nations.

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done
concluding it; and second, whether or not the Agreement, which has not been submitted to the Senate for in a long line of earlier cases, notably in the old but oft-cited emergency powers cases [22] and Kilosbayan v.
concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents Guingona, Jr.[23] In cases of transcendental importance, we wrote again in Bayan v. Zamora,[24] The Court may
expectedly raised it, we shall first tackle the issue of petitioners legal standing. 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.
The Courts Ruling
This petition is bereft of merit. Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion
Procedural Issue: Locus Standi of Petitioner brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the
Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity government,[25] we cannot but resolve head on the issues raised before us. Indeed, where an action of any
of the Agreement carries with it constitutional significance and is of paramount importance that justifies its branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of
standing. Cited in this regard is what is usually referred to as the emergency powers cases,[12] in which ordinary discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues
citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances. are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome
Statute.
Locus standi is a right of appearance in a court of justice on a given question. [13] Specifically, it is a
partys personal and substantial interest in a case where he has sustained or will sustain direct injury as a Validity of the RP-US Non-Surrender Agreement
result[14] of the act being challenged, and calls for more than just a generalized grievance. [15] The term interest Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N
refers to material interest, as distinguished from one that is merely incidental. [16] The rationale for requiring a BFO-028-03 cannot be a valid medium for concluding the Agreement.
party who challenges the validity of a law or international agreement to allege such a personal stake in the Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines,
outcome of the controversy is to assure the concrete adverseness which sharpens the presentation of issues practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2,
upon which the court so largely depends for illumination of difficult constitutional questions.[17] Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law
and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation,
Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, and amity with all nations.[26] An exchange of notes falls into the category of inter-governmental agreements,
[27]
suits are not brought by parties who have been personally injured by the operation of a law or any other which is an internationally accepted form of international agreement. The United Nations Treaty Collections
government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest. (Treaty Reference Guide) defines the term as follows:
[18]
Consequently, in a catena of cases,[19] this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens An exchange of notes is a record of a routine agreement, that has many similarities
raising issues of transcendental importance, both for the Republic and the citizenry as a whole. with the private law contract. The agreement consists of the exchange of two documents, each
of the parties being in the possession of the one signed by the representative of the other.
When suing as a citizen to question the validity of a law or other government action, a petitioner needs Under the usual procedure, the accepting State repeats the text of the offering State to record
to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit its assent. The signatories of the letters may be government Ministers, diplomats or
na mga Manananggol ng mga Manggagawang Pilipino, Inc.[20] expounded on this requirement, thus: departmental heads. The technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.[28]
In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court. In another perspective, the terms exchange of notes and executive agreements have been used
When suing as a citizen, the interest of the petitioner assailing the constitutionality of interchangeably, exchange of notes being considered a form of executive agreement that becomes binding
a statute must be direct and personal. He must be able to show, not only that the law or any through executive action.[29] On the other hand, executive agreements concluded by the President sometimes
government act is invalid, but also that he sustained or is in imminent danger of sustaining take the form of exchange of notes and at other times that of more formal documents denominated agreements
some direct injury as a result of its enforcement, and not merely that he suffers thereby in or protocols.[30] As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The
some indefinite way. It must appear that the person complaining has been or is about to be Constitutionality of Trade Agreement Acts:
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 or act complained of. In fine, when the The point where ordinary correspondence between this and other governments ends
proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies and agreements whether denominated executive agreements or exchange of notes or
the requirement of personal interest.[21] otherwise begin, may sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender
In the case at bar, petitioners representatives have complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is
 Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a limitation, and nuclear safety, among others. [43] Surely, the enumeration in Eastern Sea Trading cannot
recognized mode of concluding a legally binding international written contract among nations. 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:
Senate Concurrence Not Required x x x It would be useless to undertake to discuss here the large variety of executive
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international agreement agreements as such concluded from time to time. Hundreds of executive agreements, other
concluded between states in written form and governed by international law, whether embodied in a single than those entered into under the trade-agreement act, have been negotiated with foreign
instrument or in two or more related instruments and whatever its particular designation.[32] International governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or income tax on shipping profits, the admission of civil air craft, custom matters and commercial
(2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and relations generally, international claims, postal matters, the registration of trademarks and
are usually less formal and deal with a narrower range of subject matters than treaties.[33] copyrights, etc. x x x

Under international law, there is no difference between treaties and executive agreements in terms of And lest it be overlooked, one type of executive agreement is a treaty-authorized [44] or a treaty-
their binding effects on the contracting states concerned, [34] as long as the negotiating functionaries have implementing executive agreement,[45] which necessarily would cover the same matters subject of the underlying
remained within their powers.[35] Neither, on the domestic sphere, can one be held valid if it violates the treaty.
Constitution.[36] Authorities are, however, agreed that one is distinct from another for accepted reasons apart from
the concurrence-requirement aspect.[37] As has been observed by US constitutional scholars, a treaty has greater But over and above the foregoing considerations is the fact that save for the situation and matters
dignity than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it contemplated in Sec. 25, Art. XVIII of the Constitution [46]when a treaty is required, the Constitution does not
the authority of the President, the Senate, and the people; [38] a ratified treaty, unlike an executive agreement, classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the
takes precedence over any prior statutory enactment.[39] Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to
complete the ratification process.
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. Petitioner takes a cue from Commissioner of Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to different factual
Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing
scholars: [I]international agreements involving political issues or changes of national policy and those involving treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the
international arrangements of a permanent character usually take the form of treaties [while] those embodying Senate for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the
adjustments of detail carrying out well established national policies and traditions and those involving ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment
arrangements of a more or less temporary nature take the form of executive agreements. [40] by an executive agreement, does not obtain under the premises.

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the Considering the above discussion, the Court need not belabor at length the third main issue raised,
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the
executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, members of the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated in Bayan,[49] given recognition to
trademark and copyright protection, postal and navigation arrangements and settlement of claims. the obligatory effect of executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and necessity of subsequent Congressional approval has been confirmed by long usage. From the
Merchant,[41] holding that an executive agreement through an exchange of notes cannot be used to amend a earliest days of our history, we have entered executive agreements covering such subjects as
treaty. commercial and consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
We are not persuaded. validity of these has never been seriously questioned by our courts.

The categorization of subject matters that may be covered by international agreements mentioned The Agreement Not in Contravention of the Rome Statute
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is
given subject, into a treaty or an executive agreement as an instrument of international relations. The primary null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome
consideration in the choice of the form of agreement is the parties intent and desire to craft an international Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or
agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back groups of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-
seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It
as the parties in either international agreement each labor under the pacta sunt servanda[42] principle. concludes that state parties with non-surrender agreements are prevented from meeting their obligations under
the Rome Statute, thereby constituting a breach of Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
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 Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last
the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as resort, by the ICC; thus, any agreement like the non-surrender agreement that precludes the ICC from exercising
defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms
its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and Article 98
purpose of the Rome Statute. Cooperation with respect to waiver of immunity
and consent to surrender
Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the xxxx
Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially 2. The Court may not proceed with a request for surrender which would require
devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, the requested State to act inconsistently with its obligations under international
according to petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a priorly agreements pursuant to which the consent of a sending State is required to surrender a
executed treaty. person of that State to the Court, unless the Court can first obtain the cooperation of the
sending State for the giving of consent for the surrender
Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ
from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the Moreover, under international law, there is a considerable difference between a State-Party and a
principle of complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to
by petitioners, the jurisdiction of the ICC is to be complementary to national criminal jurisdictions [of the signatory refrain from acts which would defeat the object and purpose of a treaty;[58] whereas a State-Party, on the other
states].[54] Art. 1 of the Rome Statute pertinently provides: hand, is legally obliged to follow all the provisions of a treaty in good faith.

Article 1 In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and
The Court not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would
An International Crimininal Court (the Court) is hereby established. It x x x shall have defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision
the power to exercise its jurisdiction over persons for the most serious crimes of in the treaty would be premature.
international concern, as referred to in this Statute, and shall be complementary to national
criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from
provisions of this Statute. (Emphasis ours.) meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles
are only legally binding upon State-Parties, not signatories.
Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every
State to exercise its criminal jurisdiction over those responsible for international crimes. This provision indicates Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with
that primary jurisdiction over the so-called international crimes rests, at the first instance, with the state where the the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting State is a State not Party to this Statute
crime was committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1 [55] of the requested State, if it is not under an international obligation to extradite the person to the requesting State,
the Rome Statute. shall give priority to the request for surrender from the Court. x x x In applying the provision, certain undisputed
facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute;
Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20, Rome and second, there is an international agreement between the US and the Philippines regarding extradition or
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome
relevant, the provision states that no person who has been tried by another court for conduct x x x [constituting Statute still recognizes the primacy of international agreements entered into between States, even when one of
crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x the States is not a State-Party to the Rome Statute.
x x.
Sovereignty Limited by International Agreements
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining
conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel
the Agreement substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a who commit serious crimes of international concerns in the Philippines. Formulating petitioners argument a bit
while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the differently, the RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done
Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
within their respective borders, the complementary jurisdiction of the ICC coming into play only when the committing international crimes in the country.
signatory states are unwilling or unable to prosecute.
We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of
Given the above consideration, petitioners suggestion that the RP, by entering into the Agreement, the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is
violated its duty required by the imperatives of good faith and breached its commitment under the Vienna always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally
Convention[57] to refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statute covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try
has to be rejected outright. For nothing in the provisions of the Agreement, in relation to the Rome Statute, tends persons of the US, as the term is understood in the Agreement, under our national criminal justice system. Or it
to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome may opt not to exercise its criminal jurisdiction over its erring citizens or over US persons committing high crimes
Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the in the country and defer to the secondary criminal jurisdiction of the ICC over them. As to persons of the US
process require the requested state to perform an act that would violate some international agreement it has whom the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise
entered into. We refer to Art. 98(2) of the Rome Statute, which reads: either its national criminal jurisdiction over the person concerned or to give its consent to the referral of the
matter to the ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international
respect to persons of the RP committing high crimes within US territorial jurisdiction. law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by both Philippine laws and the Rome Statute.
In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction to the extent No Grave Abuse of Discretion
agreed uponto subjects of another State due to the recognition of the principle of extraterritorial immunity. What Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And
the Court wrote in Nicolas v. Romulo[59]a case involving the implementation of the criminal jurisdiction provisions without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the
of the RP-US Visiting Forces Agreements apropos: President, thru the DFA Secretary, in grave abuse of discretion.

Nothing in the Constitution prohibits such agreements recognizing immunity from The Court need not delve on and belabor the first portion of the above posture of petitioner, the same
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized having been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually
subjects of such immunity like Heads of State, diplomats and members of the armed forces faults the President for performing, through respondents, a task conferred the President by the Constitution the
contingents of a foreign State allowed to enter another States territory. x x x power to enter into international agreements.

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate By constitutional fiat and by the nature of his or her office, the President, as head of state and
that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into government, is the sole organ and authority in the external affairs of the country.[65] The Constitution vests in the
an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not President the power to enter into international agreements, subject, in appropriate cases, to the required
envision a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy concurrence votes of the Senate. But as earlier indicated, executive agreements may be validly entered into
of cooperation and amity with all nations.[60] without such concurrence. 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
By their nature, treaties and international agreements actually have a limiting effect on the otherwise binding executive agreements has been confirmed by long practice.[66]
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-
jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion
a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the vested in her by the Constitution. At the end of the day, the President by ratifying, thru her deputies, the non-
other. On the rationale that the Philippines has adopted the generally accepted principles of international law surrender agreement did nothing more than discharge a constitutional duty and exercise a prerogative that
aspart of the law of the land, a portion of sovereignty may be waived without violating the Constitution. [61] Such pertains to her office.
waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.[62]
While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein,
Agreement Not Immoral/Not at Variance with Principles of International Law it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary. [67] As the Court emphasized in
and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect said case, the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the
proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals immune from responsibility concurrence of the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from withholding the ratification. And concomitant with this treaty-making power of the President is his or her
delivering an American criminal to the [ICC] x x x.[63] prerogative to refuse to submit a treaty to the Senate; or having secured the latters consent to the ratification of
the treaty, refuse to ratify it.[68] This prerogative, the Court hastened to add, is the Presidents alone and cannot be
The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to be just a
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts required to complete the treaty process
undermined its treaty obligations under the Rome Statute, contrary to international law principles.[64] and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly Agreement Need Not Be in the Form of a Treaty
described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes under On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise
its national law. x x x The agreement is a recognition of the primacy and competence of the country’s judiciary to known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes
try offenses under its national criminal laws and dispense justice fairly and judiciously. Against Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos Section 17. Jurisdiction. x x x x
and Americans committing high crimes of international concern to escape criminal trial and punishment. This is In the interest of justice, the relevant Philippine authorities may dispense with the
manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be investigation or prosecution of a crime punishable under this Act if another court or
prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, international tribunal is already conducting the investigation or undertaking the prosecution of
assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been such crime. Instead, the authorities may surrender or extradite suspected or accused
met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to persons in the Philippines to the appropriate international court, if any, or to another
international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the State pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)
 A view is advanced that the Agreement amends existing municipal laws on the States obligation in Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war law, genocide and other crimes against humanity; [70] (2) provides penal sanctions and criminal liability for their
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to surrender commission;[71] and (3) establishes special courts for the prosecution of these crimes and for the State to
to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does exercise primary criminal jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of
not exercise its primary jurisdiction to prosecute them. the Agreement.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine
violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law
international tribunal; or (2) surrender the accused to another State if such surrender is pursuant to the if it does not exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the
applicable extradition laws and treaties. But the Philippines may exercise these options only in cases where above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person
another court or international tribunal is already conducting the investigation or undertaking the prosecution of accused of the crimes under RA 9851. The statutory proviso uses the word may. It is settled doctrine in statutory
such crime; otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851. construction that the word may denotes discretion, and cannot be construed as having mandatory effect.[73] Thus,
the pertinent second paragraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.
Posing the situation of a US national under prosecution by an international tribunal for any crime under
RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it decides not Besides, even granting that the surrender of a person is mandatorily required when the Philippines does
to prosecute such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA not exercise its primary jurisdiction in cases where another court or international tribunal is already conducting
9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the the investigation or undertaking the prosecution of such crime, still, the tenor of the Agreement is not repugnant
consent of the US before the Philippines can exercise such option, requires an amendatory law. In line with this to Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be made to another State
scenario, the view strongly argues that the Agreement prevents the Philippines without the consent of the US pursuant to the applicable extradition laws and treaties. The Agreement can already be considered a treaty
from surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in following this Courts decision in Nicolas v. Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held that
effect amends Sec. 17 of RA 9851.Consequently, the view is strongly impressed that the Agreement cannot be an executive agreement is a treaty within the meaning of that word in international law and constitutes
embodied in a simple executive agreement in the form of an exchange of notes but must be implemented enforceable domestic law vis--vis the United States.[76]
through an extradition law or a treaty with the corresponding formalities.
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is
the Philippines adopts, as a national policy, the generally accepted principles of international law as part of Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US
the law of the land, the Court is further impressed to perceive the Rome Statute as declaratory of customary Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.
international law. In other words, the Statute embodies principles of law which constitute customary international
law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions were filed
aforecited constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute questioning the power of the President to enter into foreign loan agreements. However, before the petitions could
principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the
branch, can only implement, but cannot amend or repeal, an existing law. The Agreement, so the argument Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus
goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive
Statute. department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed
the petitions.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede executive agreement. He stated that an executive agreement has the force and effect of law x x x [it] cannot
another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of amend or repeal prior laws.[78] Hence, this argument finds no application in this case seeing as RA 9851 is a
enforceable domestic law under Sec. 2, Art. II of the Constitution. subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but
only in the dissenting opinion.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason
any, the Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall be an extraditable offense if it
frustrate the objectives of the principles of law subsumed in the Rome Statute. is punishable under the laws in both Contracting Parties x x x,[79] and thereby concluding that while the
Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v.
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress
offenses committed by their respective citizens and military personnel, among others. The jurisdiction of the ICC adopts a law defining and punishing the offense.
pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to
the national criminal jurisdiction of the signatory states. This view must fail.
 follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by
On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general
fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions
Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of war crimes which is and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for
similar to the war crimes found in both the Rome Statute and RA 9851, thus: the determination of rules of law. The report does not fall under any of the foregoing enumerated sources. It
cannot even be considered as the teachings of highly qualified publicists. A highly qualified publicist is a scholar
(a) Offense Whoever, whether inside or outside the United States, commits a war crime, in of public international law and the term usually refers to legal scholars or academic writers. [82] It has not been
any of the circumstances described in subsection (b), shall be fined under this title or shown that the authors[83] of this report are highly qualified publicists.
imprisoned for life or any term of years, or both, and if death results to the victim, shall
also be subject to the penalty of death. Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes
(b) Circumstances The circumstances referred to in subsection (a) are that the person are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome
committing such war crime or the victim of such war crime is a member of the Armed Statute vis--vis the definitions under US laws:
Forces of the United States or a national of the United States (as defined in Section 101 of Rome Statute US Law
the Immigration and Nationality Act). Article 6 1091. Genocide
(c) Definition As used in this Section the term war crime means any conduct Genocide
(1) Defined as a grave breach in any of the international conventions signed For the purpose of this Statute, genocide means any (a) Basic Offense Whoever, whether in the time of
at Geneva 12 August 1949, or any protocol to such convention to which the United of the following acts committed with intent to destroy, peace or in time of war and with specific intent to
States is a party; in whole or in part, a national, ethnical, racial or destroy, in whole or in substantial part, a national,
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, religious group, as such: ethnic, racial or religious group as such
Respecting the Laws and Customs of War on Land, signed 18 October 1907; (a) Killing members of the group; (1) kills members of that group;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) (b) Causing serious bodily or mental harm to (2) causes serious bodily injury to members of that
when committed in the context of and in association with an armed conflict not of an members of the group; group;
international character; or (c) Deliberately inflicting on the group conditions of (3) causes the permanent impairment of the mental
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the life calculated to bring about its physical faculties of members of the group through
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other destruction in whole or in part; drugs, torture, or similar techniques;
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May (d) Imposing measures intended to prevent births (4) subjects the group to conditions of life that are
1996), when the United States is a party to such Protocol, willfully kills or causes within the group; intended to cause the physical destruction of
serious injury to civilians.[80] (e) Forcibly transferring children of the group to the group in whole or in part;
another group. (5) imposes measures intended to prevent births within
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit: the group; or
1091. Genocide (6) transfers by force children of the group to another
group;
(a) Basic Offense Whoever, whether in the time of peace or in time of war shall be punished as provided in subsection (b).
and with specific intent to destroy, in whole or in substantial part, a national, ethnic, Article 8 (a) Definition As used in this Section the term war
racial or religious group as such War Crimes crime means any conduct
(1) kills members of that group; 2. For the purpose of this Statute, war crimes (1) Defined as a grave breach in any of the
(2) causes serious bodily injury to members of that group; means: international conventions signed at Geneva12
(3) causes the permanent impairment of the mental faculties of members of the (a) Grave breaches of the Geneva Conventions of August 1949, or any protocol to such
group through drugs, torture, or similar techniques; 12 August 1949, namely, any of the following acts convention to which the United States is a
(4) subjects the group to conditions of life that are intended to cause the against persons or property protected under the party;
physical destruction of the group in whole or in part; provisions of the relevant Geneva Convention: x x (2) Prohibited by Article 23, 25, 27 or 28 of the
(5) imposes measures intended to prevent births within the group; or x[84] Annex to the Hague Convention IV, Respecting
(6) transfers by force children of the group to another group; (b) Other serious violations of the laws and customs the Laws and Customs of War on Land, signed
shall be punished as provided in subsection (b).[81] applicable in international armed conflict, within the 18 October 1907;
established framework of international law, namely, (3) Which constitutes a grave breach of common
Arguing further, another view has been advanced that the current US laws do not cover every crime any of the following acts: Article 3 (as defined in subsection [d] [85]) when
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes xxxx committed in the context of and in association
under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. (c) In the case of an armed conflict not of an with an armed conflict not of an international
Dallas, entitled On Trial: The US Military and the International Criminal Court, as its basis. international character, serious violations of article 3 character; or
common to the four Geneva Conventions of 12 (4) Of a person who, in relation to an armed conflict
At the outset, it should be pointed out that the report used may not have any weight or value under international August 1949, namely, any of the following acts and contrary to the provisions of the Protocol on
law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as
committed against persons taking no active part in Prohibitions or Restrictions on the Use of
the hostilities, including members of armed forces Mines, Booby-Traps and Other Devices as The US doubtless recognizes international law as part of the law of the land, necessarily including
who have laid down their arms and those placed amended at Geneva on 3 May 1996 (Protocol II international crimes, even without any local statute.[95] In fact, years later, US courts would apply international law
hors de combat by sickness, wounds, detention or as amended on 3 May 1996), when the United as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex
any other cause: States is a party to such Protocol, willfully kills Parte Quirin[96] the US Supreme Court noted that [f]rom the very beginning of its history this Court has recognized
xxxx or causes serious injury to civilians.[86] and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war,
(d) Paragraph 2 (c) applies to armed conflicts not of the status, rights and duties of enemy nations as well as of enemy individuals. [97] It went on further to explain that
an international character and thus does not apply to Congress had not undertaken the task of codifying the specific offenses covered in the law of war, thus:
situations of internal disturbances and tensions, It is no objection that Congress in providing for the trial of such offenses has not
such as riots, isolated and sporadic acts of violence itself undertaken to codify that branch of international law or to mark its precise
or other acts of a similar nature. boundaries, or to enumerate or define by statute all the acts which that law condemns.
(e) Other serious violations of the laws and customs An Act of Congress punishing the crime of piracy as defined by the law of nations is an
applicable in armed conflicts not of an international appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the
character, within the established framework of offense since it has adopted by reference the sufficiently precise definition of international law.
international law, namely, any of the following acts: x x x x Similarly by the reference in the 15th Article of War to offenders or offenses that x x x by
x x. the law of war may be triable by such military commissions. Congress has incorporated by
reference, as within the jurisdiction of military commissions, all offenses which are defined as
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as such by the law of war x x x, and which may constitutionally be included within that jurisdiction.
[98]
much, to wit: x x x (Emphasis supplied.)

Few believed there were wide differences between the crimes under the jurisdiction of This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
the Court and crimes within the Uniform Code of Military Justice that would expose US genocide, war crimes and crimes against humanity have attained the status of customary international law. Some
personnel to the Court. Since US military lawyers were instrumental in drafting the elements of even go so far as to state that these crimes have attained the status of jus cogens.[99]
crimes outlined in the Rome Statute, they ensured that most of the crimes were consistent with
those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of Customary international law or international custom is a source of international law as stated in the
potential gaps between the UCMJ and the Rome Statute, military experts argued, could be Statute of the ICJ.[100] It is defined as the general and consistent practice of states recognized and followed by
addressed through existing military laws.[87] x x x them from a sense of legal obligation.[101] In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective
The report went on further to say that [a]according to those involved, the elements of crimes laid out in element.[102]
the Rome Statute have been part of US military doctrine for decades.[88] Thus, the argument proffered cannot
stand. State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.
[103]
It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency;
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of and (3) duration.[104] While, opinio juris, the psychological element, requires that the state practice or norm be
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana[89] case already held carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence
international law as part of the law of the US, to wit: of a rule of law requiring it.[105]
International law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as questions of right depending upon it The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds the highest
are duly presented for their determination. For this purpose, where there is no treaty and no hierarchical position among all other customary norms and principles.[107] As a result, jus cogens norms are
controlling executive or legislative act or judicial decision, resort must be had to the customs deemed peremptory and non-derogable.[108] When applied to international crimes, jus cogens crimes have been
and usages of civilized nations, and, as evidence of these, to the works of jurists and deemed so fundamental to the existence of a just international legal order that states cannot derogate from them,
commentators who by years of labor, research, and experience have made themselves even by agreement.[109]
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of their authors concerning what the law ought to be, These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise
but for the trustworthy evidence of what the law really is.[90] (Emphasis supplied.) jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other
recognized basis for jurisdiction exists.[110] The rationale behind this principle is that the crime committed is so
Thus, a person can be tried in the US for an international crime despite the lack of domestic egregious that it is considered to be committed against all members of the international community [111] and thus
legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,[92] only granting every State jurisdiction over the crime.[112]
applies to common law and not to the law of nations or international law. [93] Indeed, the Court in U.S. v.
Hudson only considered the question, whether the Circuit Courts of the United States can exercise a common Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of
law jurisdiction in criminal cases.[94] Stated otherwise, there is no common law crime in the US but this is incorporation and universal jurisdiction to try these crimes.
considerably different from international law.
 Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome unequivocally requires that: This Statute is subject to ratification, acceptance or approval by signatory States.
[119]
Statute is not declaratory of customary international law. These clearly negate the argument that such has already attained customary status.

The first element of customary international law, i.e., established, widespread, and consistent practice More importantly, an act of the executive branch with a foreign government must be afforded great
on the part of States,[113] does not, under the premises, appear to be obtaining as reflected in this simple respect. The power to enter into executive agreements has long been recognized to be lodged with the
reality: As of October 12, 2010, only 114 [114] States have ratified the Rome Statute, subsequent to its coming into President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, [t]he
force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194 [115] countries in the power to enter into an executive agreement is in essence an executive power. This authority of the President to
world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in
contained in the Statute have attained the status of customary law and should be deemed as obligatory Philippine jurisprudence.[120] The rationale behind this principle is the inviolable doctrine of separation of powers
international law. The numbers even tend to argue against the urgency of establishing international criminal among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention
courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of of the law, courts should exercise utmost caution in declaring any executive agreement invalid.
its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
Senate for the ratification process.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring merit. No costs.
elements, thus:
SO ORDERED.
Custom or customary international law means a general and consistent practice of
states followed by them from a sense of legal obligation [opinio juris] x x x. This statement
contains the two basic elements of custom: the material factor, that is how the states behave,
and the psychological factor or subjective factor, that is, why they behave the way they do.

xxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the practice of
states.

The required duration can be either short or long. x x x

xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx G.R. No. 151445 April 11, 2002

Once the existence of state practice has been established, it becomes ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
necessary to determine why states behave the way they do. Do states behave the way they vs.
do because they consider it obligatory to behave thus or do they do it only as a matter of HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National
practice an international rule. Without it, practice is not law.[116] (Emphasis added.) Defense, respondents.
DISSENTING OPINION
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different SEPARATE OPINION
countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be
handled by a particular international criminal court. DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that
Absent the widespread/consistent-practice-of-states factor, the second or the psychological element respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and
must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the
place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution.
implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.[117] Like the first element, the second element has likewise not been shown to be present. The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of America started
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called
therein as evidenced by it requiring State consent.[118]Even further, the Rome Statute specifically and "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 8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.
defense agreement entered into by the Philippines and the United States in 1951. 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.
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 II. EXERCISE LEVEL
respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of 1. TRAINING
consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in 1999. a. The Exercise shall involve the conduct of mutual military assisting, advising and training of
The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign RP and US Forces with the primary objective of enhancing the operational capabilities of both
declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On forces to combat terrorism.
that day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade b. At no time shall US Forces operate independently within RP territory.
Center in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al- c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
Qaeda ("the Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no regulations.
comparable historical parallels, these acts caused billions of dollars worth of destruction of property and 2. ADMINISTRATION & LOGISTICS
incalculable loss of hundreds of lives. 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
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and and the provisions of the VF A. The briefing shall also promote the full cooperation on the part
prohibition, attacking the constitutionality of the joint exercise.2 They were joined subsequently by SANLAKAS of the RP and US participants for the successful conduct of the Exercise.
and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention on February b. RP and US participating forces may share, in accordance with their respective laws and
11, 2002. regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and
the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence resources.
will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on d. Legal liaison officers from each respective party shall be appointed by the Exercise
the rules relative to locus standi citing the unprecedented importance of the issue involved. Directors.
3. PUBLIC AFFAIRS
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in
Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
Reference (TOR).3Five days later, he approved the TOR, which we quote hereunder: b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be
I. POLICY LEVEL jointly developed by RP and US Forces.
1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US
consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA). Forces in accordance with their respective laws and regulations, and in consultation with
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions community and local government officials.
against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary structures such as Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge
those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant
during the Exercise. Secretary Kelly.4
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 Petitioners Lim and Ersando present the following arguments:
exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under I
the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in
instructions of the AFP during the FTX. 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE
5. The exercise shall be conducted and completed within a period of not more than six months, with the 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN
month Exercise period. BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF
Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, 1951.
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related II
activities in Cebu will be for support of the Exercise. NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".
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. Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
 Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate,
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake
standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a and the duration of their stay has been addressed in the Terms of Reference.
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 The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the
Congress' taxing or spending powers. Second, their being lawyers does not invest them with sufficient Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been
personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and described as the "core" of the defense relationship between the Philippines and its traditional ally, the United
Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree. 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
It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm.
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 The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in
petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be
the basis of established facts. 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]
Apart from these threshold issues, the Solicitor General claims that there is actually no question of temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains
constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal
The Solicitor General asks that we accord due deference to the executive determination that "Balikatan 02-1" is jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the
covered by the VFA, considering the President's monopoly in the field of foreign relations and her role as agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of
commander-in-chief of the Philippine armed forces. 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.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related
case: The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces
Notwithstanding, in view of the paramount importance and the constitutional significance of the Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom,
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States
the procedural barrier and takes cognizance of the petitions, as we have done in the early personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined.
Emergency Powers Cases, where we had occasion to rule: The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the
'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several Philippine government.8 The sole encumbrance placed on its definition is couched in the negative, in that United
executive orders issued by President Quirino although they were involving only an indirect and States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular,
general interest shared in common with the public. The Court dismissed the objection that they from any political activity."9 All other activities, in other words, are fair game.
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, We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains
technicalities of procedure.' We have since then applied the exception in many other cases. provisos governing interpretations of international agreements, state:
[citation omitted]
SECTION 3. INTERPRETATION OF TREATIES
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, Article 31
and Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically held: General rule of interpretation
Considering however the importance to the public of the case at bar, and in keeping with the 1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the
Court's duty, under the 1987 Constitution, to determine whether or not the other branches of tenus of the treaty in their context and in the light of its object and purpose.
the government have kept themselves within the limits of the Constitution and the laws that 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
they have not abused the discretion given to them, the Court has brushed aside technicalities including its preamble and annexes:
of procedure and has taken cognizance of this petition. xxx' (a) any agreement relating to the treaty which was made between all the parties in connexion
with the conclusion of the treaty;
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of (b) any instrument which was made by one or more parties in connexion with the conclusion of
transcendental importance, the Court may relax the standing requirements and allow a suit to the treaty and accepted by the other parties as an instrument related to the party .
prosper even where there is no direct injury to the party claiming the right of judicial review. 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
Although courts generally avoid having to decide a constitutional question based on the doctrine of the application of its provisions;
separation of powers, which enjoins upon the department of the government a becoming respect for (b) any subsequent practice in the application of the treaty which establishes the agreement of
each other's act, this Court nevertheless resolves to take cognizance of the instant petition.6 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 on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on
Supplementary means of interpretation this matter thereby becomes crucial.
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 In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on
application of article 31, or to determine the meaning when the interpretation according to article 31 : Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:
(a) leaves the meaning ambiguous or obscure; or Article 2
(b) leads to a result which is manifestly absurd unreasonable. The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
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 xxx xxx xxx xxx
deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be 4. All Members shall refrain in their international relations from the threat or use of force against the
taken into account alongside the aforesaid context. As explained by a writer on the Convention , territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
[t]he Commission's proposals (which were adopted virtually without change by the conference and are xxx xxx xxx xxx
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 In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties
accordingly came down firmly in favour of the view that 'the starting point of interpretation is the and international agreements to which the Philippines is a party, must be read in the context of the 1987
elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it
This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key
relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory.
prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase Thus, in the Declaration of Principles and State Policies, it is provided that:
'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The xxx xxx xxx xxx
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 SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally
method of interpretation divorced from the general rule.10 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.
The Terms of Reference rightly fall within the context of the VFA. xxx xxx xxx xxx
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities" SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the
arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right
negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. to self- determination.
As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom
nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief from nuclear weapons in the country.
operations, civic action projects such as the building of school houses, medical and humanitarian missions, and
the like. xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella members of the Senate."12 Even more pointedly, the Transitory Provisions state:
of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself United States of America concerning Military Bases, foreign military bases, troops or facilities shall not
-such as the one subject of the instant petition, are indeed authorized. 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
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, held for that purpose, and recognized as a treaty by the other contracting state.
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 The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of
territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct
participants may not engage in combat "except in self-defense." We wryly note that this sentiment is exception. Conflict arises then between the fundamental law and our obligations arising from international
admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot agreements.
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 A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip
awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per Morris, Inc. v. Court of Appeals,13 to wit:
alium quod non potest facere per directum." 11 The indirect violation is actually petitioners' worry, that in reality, xxx Withal, the fact that international law has been made part of the law of the land does not by any
"Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the provision 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 amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of
equal, not superior, to national legislation. law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal
hostility."19
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 In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20
approaches may offer valuable insights. 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
From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle on the part of any branch or instrumentality of the government." 21 From the facts obtaining, we find that the
of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would
them in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as otherwise call for correction on our part. In other words, respondents in the case at bar have not committed grave
justification for its failure to perform a treaty."15 abuse of discretion amounting to lack or excess of jurisdiction.

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII: WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing
The Supreme Court shall have the following powers: of a new petition sufficient in form and substance in the proper Regional Trial Court.
xxx xxx xxx xxx SO ORDERED.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v.
Hechanova,17
xxx As regards the question whether an international agreement may be invalidated by our courts, G.R. No. 175888 February 11, 2009
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by SUZETTE NICOLAS y SOMBILON, Petitioner,
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its vs.
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as
the rules of court may provide, final judgments and decrees of inferior courts in -( I) All cases in which Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in his
the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in capacity as Secretary of the Interior and Local Government; SERGIO APOSTOL, in his capacity as
question." In other words, our Constitution authorizes the nullification of a treaty, not only when it Presidential Legal Counsel; and L/CPL. DANIEL SMITH, Respondents.
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. DECISION
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on
Philippine territory. AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of
Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated
under the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, January 2, 2007.
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 The facts are not disputed.
issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was
accordance with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof, charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005,
petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere as follows:
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, The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood
and this we are understandably loath to do. and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by
Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made
It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must an integral part hereof as Annex "A," committed as follows:
concur with the Solicitor General that the present subject matter is not a fit 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. "That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and
The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave within the jurisdiction of this Honorable Court, the above-named accused’s (sic), being then members of the
abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross as to United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually
helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior
strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and DATE: 12-19-06 DATE: December 19, 2006
feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a
and the Romulo-Kenney Agreement of December 22, 2006 which states:
22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of
Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L.
America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon
Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice.
transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be
CONTRARY TO LAW."1
detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x
12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States,
authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG)
entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith
will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA.
pending the proceedings.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.3
security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith
Hence, the present actions.
to the trial court every time his presence was required.
The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant
memoranda.
Smith guilty, thus:
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused
VFA is void and unconstitutional.
S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the
US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged.
This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in
Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present cases.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US
Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties, the reversal of the
crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A.
previous ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of the
8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty
Republic, as well as a specific mandate of the Constitution.
of reclusion perpetua together with the accessory penalties provided for under Article 41 of the same Code.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines
United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter,
except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority
be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities,
of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail.
other contracting State.
The reason for this provision lies in history and the Philippine experience in regard to the United States military
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the
bases in the country.
amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral damages.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth
SO ORDERED.2
and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the
territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
certain naval ports and/or military bases and facilities, which the United States retained for itself.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine
This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines
law enforcement agents, purportedly acting under orders of the Department of the Interior and Local
covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded
Government, and brought to a facility for detention under the control of the United States government, provided
from the cession and retained by the US.
for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United
Agreement of December 19, 2006 which states:
States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States
Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our
The Government of the Republic of the Philippines and the Government of the United States of America agree
Senate.
that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the
Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.
RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the
(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo Philippines.
Representative of the United States Representative of the Republic To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.
of America of the Philippines
The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed
troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the
State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and
Applying the provision to the situation involved in these cases, the question is whether or not the presence of US obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for
Armed Forces in Philippine territory pursuant to the VFA is allowed "under a treaty duly concurred in by the the maintenance of international peace and security.
Senate xxx and recognized as a treaty by the other contracting State." Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in
This Court finds that it is, for two reasons. accordance with their respective constitutional processes and will come into force when instruments of
First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and has been ratification thereof have been exchanged by them at Manila.
recognized as a treaty by the United States as attested and certified by the duly authorized representative of the Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has
United States government. been given to the other party.
The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract In withness whereof the undersigned Plenipotentiaries have signed this Treaty.
from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of Done in duplicate at Washington this thirtieth day of August, 1951.
internal United States law. Notice can be taken of the internationally known practice by the United States of For the Republic of the Philippines:
submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that (Sgd.) Carlos P. Romulo
carry out or further implement these policymaking agreements are merely submitted to Congress, under the (Sgd.) Joaquin M. Elizalde
provisions of the so-called Case–Zablocki Act, within sixty days from ratification.6 (Sgd.) Vicente J. Francisco
The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August (Sgd.) Diosdado Macapagal
30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate For the United States of America:
and the United States Senate. (Sgd.) Dean Acheson
The RP-US Mutual Defense Treaty states:7 (Sgd.) John Foster Dulles
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES (Sgd.) Tom Connally
OF AMERICA. Signed at Washington, August 30, 1951. (Sgd.) Alexander Wiley8
The Parties of this Treaty Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument
in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area. agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main
Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond RP-US Military Defense Treaty. The Preamble of the VFA states:
of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war. The Government of the United States of America and the Government of the Republic of the Philippines,
Desiring to declare publicly and formally their sense of unity and their common determination to defend Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to
themselves against external armed attack, so that no potential aggressor could be under the illusion that either of strengthen international and regional security in the Pacific area;
them stands alone in the Pacific area. Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Desiring further to strengthen their present efforts for collective defense for the preservation of peace and Noting that from time to time elements of the United States armed forces may visit the Republic of the
security pending the development of a more comprehensive system of regional security in the Pacific area. Philippines;
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense Considering that cooperation between the United States and the Republic of the Philippines promotes their
altering or diminishing any existing agreements or understandings between the Republic of the Philippines and common security interests;
the United States of America. Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the
Have agreed as follows: Philippines;
Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international Have agreed as follows:9
disputes in which they may be involved by peaceful means in such a manner that international peace and Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit
security and justice are not endangered and to refrain in their international relation from the threat or use of force the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act
in any manner inconsistent with the purposes of the United Nations. within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a
Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII,
self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack. Sec. 25 of our Constitution.10
Article III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of
regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual Defense Treaty. Since
political independence or security of either of the Parties is threatened by external armed attack in the Pacific. the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be US Senate, there is no violation of the Constitutional provision resulting from such presence.
dangerous to its own peace and safety and declares that it would act to meet the common dangers in The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide
accordance with its constitutional processes. by its terms and provisions.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the
Council of the United Nations. Such measures shall be terminated when the Security Council has taken the Philippines, the following rules apply:
measures necessary to restore and maintain international peace and security. Article V
Criminal Jurisdiction Respondents should therefore comply with the VFA and negotiate with representatives of the United States
xxx towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall VFA.
immediately reside with United States military authorities, if they so request, from the commission of the offense Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US
until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are not automatically
Philippine authorities and without delay, make such personnel available to those authorities in time for any part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make
investigative or judicial proceedings relating to the offense with which the person has been charged. In them enforceable.1avvphi1
extraordinary cases, the Philippine Government shall present its position to the United States Government On February 3, 2009, the Court issued a Resolution, thus:
regarding custody, which the United States Government shall take into full account. In the event Philippine "G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et
judicial proceedings are not completed within one year, the United States shall be relieved of any obligations al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President
under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year Gloria Macapagal-Arroyo, et al.).
period will not include any time during which scheduled trial procedures are delayed because United States The parties, including the Solicitor General, are required to submit within three (3) days a
authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do Comment/Manifestation on the following points:
so. 1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court
Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations
for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. that are not self-executory can only be enforced pursuant to legislation to carry them into effect; and
5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different that, while treaties may comprise international commitments, they are not domestic law unless
rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art. III, Congress has enacted implementing statutes or the treaty itself conveys an intention that it be "self-
Sec. 1.). executory" and is ratified on these terms?
Again, this Court finds no violation of the Constitution. 2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or
The equal protection clause is not violated, because there is a substantial basis for a different treatment of a because there exists legislation to implement it.
member of a foreign military armed forces allowed to enter our territory and all other accused.11 3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate
The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no part."
jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units After deliberation, the Court holds, on these points, as follows:
around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend
bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and
the sending State only to the extent agreed upon by the parties.12 undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and
As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the
curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including trial.
rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b),
another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under
forces. this Act within 60 days from their ratification be immediately implemented. The parties to these present cases do
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of not question the fact that the VFA has been registered under the Case-Zablocki Act.1avvphi1
jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of
diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ
territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of decision are not self-executing and are not registrable under the Case-Zablocki Act, and thus lack legislative
international law as part of the law of the land. (Art. II, Sec. 2). implementing authority.
Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952,
detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that as reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 – Part 2, pp. 2594-2595.
governs is the following provision of the VFA: The framers of the Constitution were aware that the application of international law in domestic courts varies
Article V from country to country.
Criminal Jurisdiction As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW
xxx IN NATIONAL COURTS, some countries require legislation whereas others do not.
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the
facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving other contracting State to convert their system to achieve alignment and parity with ours. It was simply required
sentences in the Philippines shall have the right to visits and material assistance. that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a
It is clear that the parties to the VFA recognized the difference between custody during the trial and detention binding international obligation and the enforcement of that obligation is left to the normal recourse and
after conviction, because they provided for a specific arrangement to cover detention. And this specific processes under international law.
arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive agreement is a "treaty"
both parties, but also that the detention shall be "by Philippine authorities." Therefore, the Romulo-Kenney within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United
Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States. Thus, the US Supreme Court in Weinberger enforced the provisions of the executive agreement granting
States Embassy, are not in accord with the VFA itself because such detention is not "by Philippine authorities." preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system: FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners,
1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance with vs.
Art. II, Sec. 2 of the US Constitution. DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF
2. Executive–Congressional Agreements: These are joint agreements of the President and Congress FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA,
and need not be submitted to the Senate. JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA,
3. Sole Executive Agreements. – These are agreements entered into by the President. They are to be DEFENSE UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE,
submitted to Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO
Act, after which they are recognized by the Congress and may be implemented. BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given QUILOP AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE
under it and this can only be done through implementing legislation. The VFA itself is another form of PHILIPPINES ON EDCA, Respondents.
implementation of its provisions. x-----------------------x
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-G.R. SP No. KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR
97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR
Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ,
and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-
representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in in-Intervention,
Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court. RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the DECISION
petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction. SERENO, J.:
No costs. The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation Agreement
SO ORDERED. (EDCA) between the Republic of the Philippines and the United States of America (U.S.). Petitioners allege that
ADOLFO S. AZCUNA respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they entered
Associate Justice 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
EN BANC A. The Prime Duty of the State and the Consolidation of Executive Power in the President
January 12, 2016 Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig ang aking
G.R. No. 212426 mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas,
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito, magiging
JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, - Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5
AND TEDDY CASIÑO, Petitioners, The 1987 Constitution has "vested the executive power in the President of the Republic of the
vs. Philippines."6 While the vastness of the executive power that has been consolidated in the person of the
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY President cannot be expressed fully in one provision, the Constitution has stated the prime duty of the
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR., government, of which the President is the head:
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES The prime duty of the Government is to serve and protect the people. The Government may call upon the
OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents. people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided
x-----------------------x by law, to render personal military or civil service.7 (Emphases supplied)
G.R. No. 212444 B. The duty to protect the territory and the citizens of the Philippines, the power to call upon the people
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO to defend the State, and the President as Commander-in-Chief
M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole
ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE territory of the Philippines in accordance with the constitutional provision on national territory. Hence, the
JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST President of the Philippines, as the sole repository of executive power, is the guardian of the Philippine
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, archipelago, including all the islands and waters embraced therein and all other territories over which it has
MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial domains; including its
AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas; and the waters around, The responsibility of the President when it comes to treaties and international agreements under the present
between, and connecting the islands of the archipelago, regardless of their breadth and dimensions.8 Constitution is therefore shared with the Senate. This shared role, petitioners claim, is bypassed by EDCA.
To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines II. HISTORICAL ANTECEDENTS OF EDCA
(AFP),9 which is the protector of the people and the state. The AFP's role is to secure the sovereignty of the State A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine
and the integrity of the national territory.10 In addition, the Executive is constitutionally empowered to maintain independence
peace and order; protect life, liberty, and property; and promote the general welfare.11 The presence of the U.S. military forces in the country can be traced to their pivotal victory in the 1898 Battle of
In recognition of these powers, Congress has specified that the President must oversee, ensure, and reinforce Manila Bay during the Spanish-American War. 24 Spain relinquished its sovereignty over the Philippine Islands in
our defensive capabilities against external and internal threats12 and, in the same vein, ensure that the country is favor of the U.S. upon its formal surrender a few months later.25 By 1899, the Americans had consolidated a
adequately prepared for all national and local emergencies arising from natural and man-made disasters.13 military administration in the archipelago.26
To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the AFP to When it became clear that the American forces intended to impose colonial control over the Philippine Islands,
prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the privilege of the writ General Emilio Aguinaldo immediately led the Filipinos into an all-out war against the U.S. 27 The Filipinos were
of habeas corpus for a period exceeding 60 days, or place the Philippines or any part thereof under martial law ultimately defeated in the Philippine-American War, which lasted until 1902 and led to the downfall of the first
exceeding that same span. In the exercise of these powers, the President is also duty-bound to submit a report Philippine Republic.28 The Americans henceforth began to strengthen their foothold in the country. 29 They took
to Congress, in person or in writing, within 48 hours from the proclamation of martial law or the suspension of the over and expanded the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post called
privilege of the writ of habeas corpus; and Congress may in turn revoke the proclamation or suspension. The Fort Stotsenberg in Pampanga, now known as Clark Air Base.30
same provision provides for the Supreme Court's review of the factual basis for the proclamation or suspension, When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested the desire
as well as the promulgation of the decision within 30 days from filing. to maintain military bases and armed forces in the country. 31 The U.S. Congress later enacted the Hare-Hawes-
C. The power and duty to conduct foreign relations Cutting Act of 1933, which required that the proposed constitution of an independent Philippines recognize the
The President also carries the mandate of being the sole organ in the conduct of foreign relations. 15 Since every right of the U.S. to maintain the latter's armed forces and military bases. 32 The Philippine Legislature rejected that
state has the capacity to interact with and engage in relations with other sovereign states, 16 it is but logical that law, as it also gave the U.S. the power to unilaterally designate any part of Philippine territory as a permanent
every state must vest in an agent the authority to represent its interests to those other sovereign states. military or naval base of the U.S. within two years from complete independence.33
The conduct of foreign relations is full of complexities and consequences, sometimes with life and death The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the Philippine
significance to the nation especially in times of war. It can only be entrusted to that department of government Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law provided for the surrender
which can act on the basis of the best available information and can decide with decisiveness. x x x It is also the to the Commonwealth Government of "all military and other reservations" of the U.S. government in the
President who possesses the most comprehensive and the most confidential information about foreign countries Philippines, except "naval reservations and refueling stations." 34 Furthermore, the law authorized the U.S.
for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also President to enter into negotiations for the adjustment and settlement of all questions relating to naval
unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in foreign affairs is reservations and fueling stations within two years after the Philippines would have gained independence. 35 Under
dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. the Tydings-McDuffie Act, the U.S. President would proclaim the American withdrawal and surrender of
The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial sovereignty over the islands 10 years after the inauguration of the new government in the Philippines. 36 This law
repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, eventually led to the promulgation of the 1935 Philippine Constitution.
national embarrassment and a plethora of other problems with equally undesirable consequences.17 The original plan to surrender the military bases changed. 37 At the height of the Second World War, the Philippine
The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive must give and the U.S. Legislatures each passed resolutions authorizing their respective Presidents to negotiate the matter
paramount importance to the sovereignty of the nation, the integrity of its territory, its interest, and the right of the of retaining military bases in the country after the planned withdrawal of the U.S. 38 Subsequently, in 1946, the
sovereign Filipino people to self-determination.18 In specific provisions, the President's power is also limited, or at countries entered into the Treaty of General Relations, in which the U.S. relinquished all control and sovereignty
least shared, as in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans, over the Philippine Islands, except the areas that would be covered by the American military bases in the
treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive country.39 This treaty eventually led to the creation of the post-colonial legal regime on which would hinge the
acts; Sections 4 and 25 of Article XVIII on treaties and international agreements entered into prior to the continued presence of U.S. military forces until 1991: the Military Bases Agreement (MBA) of 1947, the Military
Constitution and on the presence of foreign military troops, bases, or facilities. Assistance Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951.40
D. The relationship between the two major presidential functions and the role of the Senate B. Former legal regime on the presence of U.S. armed forces in the territory of an independent
Clearly, the power to defend the State and to act as its representative in the international sphere inheres in the Philippines (1946-1991)
person of the President. This power, however, does not crystallize into absolute discretion to craft whatever Soon after the Philippines was granted independence, the two countries entered into their first military
instrument the Chief Executive so desires. As previously mentioned, the Senate has a role in ensuring that arrangement pursuant to the Treaty of General Relations - the 1947 MBA. 41 The Senate concurred on the
treaties or international agreements the President enters into, as contemplated in Section 21 of Article VII of the premise of "mutuality of security interest,"42 which provided for the presence and operation of 23 U.S. military
Constitution, obtain the approval of two-thirds of its members. bases in the Philippines for 99 years or until the year 2046. 43 The treaty also obliged the Philippines to negotiate
Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang with the U.S. to allow the latter to expand the existing bases or to acquire new ones as military necessity might
Pambansa,19except in instances wherein the President "may enter into international treaties or agreements as require.44
the national welfare and interest may require."20 This left a large margin of discretion that the President could use A number of significant amendments to the 1947 MBA were made. 45 With respect to its duration, the parties
to bypass the Legislature altogether. This was a departure from the 1935 Constitution, which explicitly gave the entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99 years to a total of
President the power to enter into treaties only with the concurrence of two-thirds of all the Members of the 44 years or until 1991.46 Concerning the number of U.S. military bases in the country, the Bohlen-Serrano
Senate.21 The 1987 Constitution returned the Senate's power 22 and, with it, the legislative's traditional role in Memorandum of Agreement provided for the return to the Philippines of 17 U.S. military bases covering a total
foreign affairs.23 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 exchanged diplomatic notes confirming the completion of all necessary internal requirements for the agreement
used by the U.S. military.49 The agreement also provided for the mandatory review of the treaty every five to enter into force in the two countries.86
years.50 In 1983, the parties revised the 1947 MBA through the Romualdez-Armacost Agreement. 51 The revision According to the Philippine government, the conclusion of EDCA was the result of intensive and comprehensive
pertained to the operational use of the military bases by the U.S. government within the context of Philippine negotiations in the course of almost two years. 87 After eight rounds of negotiations, the Secretary of National
sovereignty,52 including the need for prior consultation with the Philippine government on the former' s use of the Defense and the U.S. Ambassador to the Philippines signed the agreement on 28 April 2014. 88 President
bases for military combat operations or the establishment of long-range missiles.53 Benigno S. Aquino III ratified EDCA on 6 June 2014. 89 The OSG clarified during the oral arguments90 that the
Pursuant to the legislative authorization granted under Republic Act No. 9, 54 the President also entered into the Philippine and the U.S. governments had yet to agree formally on the specific sites of the Agreed Locations
1947 Military Assistance Agreement55 with the U.S. This executive agreement established the conditions under mentioned in the agreement.
which U.S. military assistance would be granted to the Philippines, 56 particularly the provision of military arms, Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They primarily
ammunitions, supplies, equipment, vessels, services, and training for the latter's defense forces. 57 An exchange argue that it should have been in the form of a treaty concurred in by the Senate, not an executive agreement.
of notes in 1953 made it clear that the agreement would remain in force until terminated by any of the parties.58 On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file their
To further strengthen their defense and security relationship, 59 the Philippines and the U.S. next entered into the respective memoranda, the Senators adopted Senate Resolution No. (SR) 105. 91 The resolution expresses the
MDT in 1951. Concurred in by both the Philippine 60 and the U.S.61 Senates, the treaty has two main "strong sense"92 of the Senators that for EDCA to become valid and effective, it must first be transmitted to the
features: first, it allowed for mutual assistance in maintaining and developing their individual and collective Senate for deliberation and concurrence.
capacities to resist an armed attack;62 and second, it provided for their mutual self-defense in the event of an III. ISSUES
armed attack against the territory of either party.63 The treaty was premised on their recognition that an armed Petitioners mainly seek a declaration that the Executive Department committed grave abuse of discretion in
attack on either of them would equally be a threat to the security of the other.64 entering into EDCA in the form of an executive agreement. For this reason, we cull the issues before us:
C. Current legal regime on the presence of U.S. armed forces in the country A. Whether the essential requisites for judicial review are present
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated for a B. Whether the President may enter into an executive agreement on foreign military bases,
possible renewal of their defense and security relationship.65 Termed as the Treaty of Friendship, Cooperation troops, or facilities
and Security, the countries sought to recast their military ties by providing a new framework for their defense C. Whether the provisions under EDCA are consistent with the Constitution, as well as with
cooperation and the use of Philippine installations.66 One of the proposed provisions included an arrangement in existing laws and treaties
which U.S. forces would be granted the use of certain installations within the Philippine naval base in Subic. 67 On IV. DISCUSSION
16 September 1991, the Senate rejected the proposed treaty.68 A. Whether the essential requisites for judicial review have been satisfied
The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing with the Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating the
treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-scale joint military Constitution. They stress that our fundamental law is explicit in prohibiting the presence of foreign military forces
exercises.69In the meantime, the respective governments of the two countries agreed70 to hold joint exercises at a in the country, except under a treaty concurred in by the Senate. Before this Court may begin to analyze the
substantially reduced level.71 The military arrangements between them were revived in 1999 when they constitutionality or validity of an official act of a coequal branch of government, however, petitioners must show
concluded the first Visiting Forces Agreement (VFA).72 that they have satisfied all the essential requisites for judicial review.93
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the regulatory mechanism for Distinguished from the general notion of judicial power, the power of judicial review specially refers to both the
the treatment of U.S. military and civilian personnel visiting the country. 74 It contains provisions on the entry and authority and the duty of this Court to determine whether a branch or an instrumentality of government has acted
departure of U.S. personnel; the purpose, extent, and limitations of their activities; criminal and disciplinary beyond the scope of the latter's constitutional powers.94 As articulated in Section 1, Article VIII of the Constitution,
jurisdiction; the waiver of certain claims; the importation and exportation of equipment, materials, supplies, and the power of judicial review involves the power to resolve cases in which the questions concern the
other pieces of property owned by the U.S. government; and the movement of U.S. military vehicles, vessels, constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
and aircraft into and within the country.75 The Philippines and the U.S. also entered into a second counterpart proclamation, order, instruction, ordinance, or regulation.95 In Angara v. Electoral Commission, this Court
agreement (VFA II), which in turn regulated the treatment of Philippine military and civilian personnel visiting the exhaustively discussed this "moderating power" as part of the system of checks and balances under the
U.S.76 The Philippine Senate concurred in the first VFA on 27 May 1999.77 Constitution. In our fundamental law, the role of the Court is to determine whether a branch of government has
Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part in joint adhered to the specific restrictions and limitations of the latter's power:96
military exercises with their Filipino counterparts.78 Called Balikatan, these exercises involved trainings aimed at The separation of powers is a fundamental principle in our system of government. It obtains not through express
simulating joint military maneuvers pursuant to the MDT.79 provision but by actual division in our Constitution. Each department of the government has exclusive
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to "further cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow
the interoperability, readiness, and effectiveness of their respective military forces" 80 in accordance with the MDT, from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be
the Military Assistance Agreement of 1953, and the VFA. 81 The new agreement outlined the basic terms, absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate
conditions, and procedures for facilitating the reciprocal provision of logistics support, supplies, and services system of checks and balances to secure coordination in the workings of the various departments of the
between the military forces of the two countries. 82 The phrase "logistics support and services" includes billeting, government. x x x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks
operations support, construction and use of temporary structures, and storage services during an approved the other departments in the exercise of its power to determine the law, and hence to declare executive
activity under the existing military arrangements.83 Already extended twice, the agreement will last until 2017.84 and legislative acts void if violative of the Constitution.
D. The Enhanced Defense Cooperation Agreement xxxx
EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it
Locations" in the country. It was not transmitted to the Senate on the executive's understanding that to do so was was within the power of our people, acting through their delegates to so provide, that instrument which is the
no longer necessary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy 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 nonparticipation of the Senators in the present petitions only confirms that even they believe that EDCA is a
uncertain language the restrictions and limitations upon governmental powers and agencies. If these binding executive agreement that does not require their concurrence.
restrictions and limitations are transcended it would be inconceivable if the Constitution had not It must be emphasized that the Senate has already expressed its position through SR 105. 108 Through the
provided for a mechanism by which to direct the course of government along constitutional channels, Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to participate in
for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional role indicates that an
sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and actual controversy - albeit brought to the Court by non-Senators, exists.
restrictions embodied in our Constitution are real as they should be in any living constitution. x x x. In our case, Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as basis for
this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of [the 1935] finding that there is no actual case or controversy before us. We point out that the focus of this requirement is the
Constitution. ripeness for adjudication of the matter at hand, as opposed to its being merely conjectural or anticipatory.109 The
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of case must involve a definite and concrete issue involving real parties with conflicting legal rights and legal claims
such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And admitting of specific relief through a decree conclusive in nature. 110 It should not equate with a mere request for
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over an opinion or advice on what the law would be upon an abstract, hypothetical, or contingent state of facts. 111 As
the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts explained in Angara v. Electoral Commission:112
the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of [The] power of judicial review is limited to actual cases and controversies to be exercised after full
authority under the Constitution and to establish for the parties in an actual controversy the rights which opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis
that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to
supremacy" which properly is the power of judicial review under the Constitution. x x x x. (Emphases sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts accord the
supplied) presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide
The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has by the Constitution but also because the judiciary in the determination of actual cases and controversies
been extended to the determination of whether in matters traditionally considered to be within the sphere of must reflect the wisdom and justice of the people as expressed through their representatives in the
appreciation of another branch of government, an exercise of discretion has been attended with grave executive and legislative departments of the government. (Emphases supplied)
abuse.97 The expansion of this power has made the political question doctrine "no longer the insurmountable We find that the matter before us involves an actual case or controversy that is already ripe for adjudication. The
obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative Executive Department has already sent an official confirmation to the U.S. Embassy that "all internal
actions from judicial inquiry or review."98 requirements of the Philippines x x x have already been complied with." 113 By this exchange of diplomatic notes,
This moderating power, however, must be exercised carefully and only if it cannot be completely avoided. We the Executive Department effectively performed the last act required under Article XII(l) of EDCA before the
stress that our Constitution is so incisively designed that it identifies the spheres of expertise within which the agreement entered into force. Section 25, Article XVIII of the Constitution, is clear that the presence of foreign
different branches of government shall function and the questions of policy that they shall resolve. 99 Since the military forces in the country shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the
power of judicial review involves the delicate exercise of examining the validity or constitutionality of an act of a performance of an official act by the Executive Department that led to the entry into force of an executive
coequal branch of government, this Court must continually exercise restraint to avoid the risk of supplanting the agreement was sufficient to satisfy the actual case or controversy requirement.
wisdom of the constitutionally appointed actor with that of its own.100 2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues involving
Even as we are left with no recourse but to bare our power to check an act of a coequal branch of government - matters of transcendental importance.
in this case the executive - we must abide by the stringent requirements for the exercise of that power under the The question of locus standi or legal standing focuses on the determination of whether those assailing the
Constitution. Demetria v. Alba101 and Francisco v. House of Representatives102 cite the "pillars" of the limitations governmental act have the right of appearance to bring the matter to the court for adjudication. 114 They must
on the power of judicial review as enunciated in the concurring opinion of U.S. Supreme Court Justice Brandeis show that they have a personal and substantial interest in the case, such that they have sustained or are in
in Ashwander v. Tennessee Valley Authority.103 Francisco104 redressed these "pillars" under the following immediate danger of sustaining, some direct injury as a consequence of the enforcement of the challenged
categories: governmental act.115 Here, "interest" in the question involved must be material - an interest that is in issue and
1. That there be absolute necessity of deciding a case will be affected by the official act - as distinguished from being merely incidental or general. 116 Clearly, it would be
2. That rules of constitutional law shall be formulated only as required by the facts of the case insufficient to show that the law or any governmental act is invalid, and that petitioners stand to suffer in some
3. That judgment may not be sustained on some other ground indefinite way.117 They must show that they have a particular interest in bringing the suit, and that they have been
4. That there be actual injury sustained by the party by reason of the operation of the statute or are about to be denied some right or privilege to which they are lawfully entitled, or that they are about to be
5. That the parties are not in estoppel subjected to some burden or penalty by reason of the act complained of.118 The reason why those who challenge
6. That the Court upholds the presumption of constitutionality the validity of a law or an international agreement are required to allege the existence of a personal stake in the
(Emphases supplied) outcome of the controversy is "to assure the concrete adverseness which sharpens the presentation of issues
These are the specific safeguards laid down by the Court when it exercises its power of judicial review. 105 Guided upon which the court so largely depends for illumination of difficult constitutional questions."119
by these pillars, it may invoke the power only when the following four stringent requirements are satisfied: (a) The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body has the
there is an actual case or controversy; (b) petitioners possess locus standi; (c) the question of constitutionality is requisite standing, but considering that it has not formally filed a pleading to join the suit, as it merely conveyed
raised at the earliest opportunity; and (d) the issue of constitutionality is the lis mota of the case.106 Of these four, to the Supreme Court its sense that EDCA needs the Senate's concurrence to be valid, petitioners continue to
the first two conditions will be the focus of our discussion. suffer from lack of standing.
1. Petitioners have shown the presence of an actual case or controversy. In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the requirement
The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have not been of having to establish a direct and personal interest if they show that the act affects a public right. 120 In arguing
deprived of the opportunity to invoke the privileges of the institution they are representing. It contends that the that they have legal standing, they claim 121 that the case they have filed is a concerned citizen's suit. But aside
from general statements that the petitions involve the protection of a public right, and that their constitutional
rights as citizens would be violated, they fail to make any specific assertion of a particular public right that would that the fundamental law embodying the will of the sovereign people is not trampled upon . (Emphases
be violated by the enforcement of EDCA. For their failure to do so, the present petitions cannot be supplied)
considered by the Court as citizens' suits that would justify a disregard of the aforementioned We emphasize that in a legislators' suit, those Members of Congress who are challenging the official act have
requirements. standing only to the extent that the alleged violation impinges on their right to participate in the exercise of the
In claiming that they have legal standing as taxpayers, petitioners122 aver that the implementation of EDCA would powers of the institution of which they are members. 135 Legislators have the standing "to maintain inviolate the
result in the unlawful use of public funds. They emphasize that Article X(1) refers to an appropriation of funds; prerogatives, powers, and privileges vested by the Constitution in their office and are allowed to sue to question
and that the agreement entails a waiver of the payment of taxes, fees, and rentals. During the oral arguments, the validity of any official action, which they claim infringes their prerogatives as legislators." 136 As legislators,
however, they admitted that the government had not yet appropriated or actually disbursed public funds for the they must clearly show that there was a direct injury to their persons or the institution to which they belong.137
purpose of implementing the agreement.123 The OSG, on the other hand, maintains that petitioners cannot sue as As correctly argued by respondent, the power to concur in a treaty or an international agreement is an
taxpayers.124Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed at the institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature. In Pimentel v.
disbursement of public funds. Office of the Executive Secretary, this Court did not recognize the standing of one of the petitioners therein who
A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal disbursement was a member of the House of Representatives. The petition in that case sought to compel the transmission to
of public funds derived from taxation.125 Here, those challenging the act must specifically show that they have the Senate for concurrence of the signed text of the Statute of the International Criminal Court. Since that petition
sufficient interest in preventing the illegal expenditure of public money, and that they will sustain a direct injury as invoked the power of the Senate to grant or withhold its concurrence in a treaty entered into by the Executive
a result of the enforcement of the assailed act.126 Applying that principle to this case, they must establish that Department, only then incumbent Senator Pimentel was allowed to assert that authority of the Senate of which
EDCA involves the exercise by Congress of its taxing or spending powers.127 he was a member.
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a taxpayers' suit Therefore, none of the initial petitioners in the present controversy has the standing to maintain the suits
contemplates a situation in which there is already an appropriation or a disbursement of public funds. 128 A as legislators.
reading of Article X(l) of EDCA would show that there has been neither an appropriation nor an authorization of Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the following reasons.
disbursement of funds. The cited provision reads: In any case, petitioners raise issues involving matters of transcendental importance.
All obligations under this Agreement are subject to the availability of appropriated funds authorized for these Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition tackles issues
purposes. (Emphases supplied) that are of transcendental importance. They point out that the matter before us is about the proper exercise of the
This provision means that if the implementation of EDCA would require the disbursement of public funds, the Executive Department's power to enter into international agreements in relation to that of the Senate to concur in
money must come from appropriated funds that are specifically authorized for this purpose. Under the those agreements. They also assert that EDCA would cause grave injustice, as well as irreparable violation of
agreement, before there can even be a disbursement of public funds, there must first be a legislative the Constitution and of the Filipino people's rights.
action. Until and unless the Legislature appropriates funds for EDCA, or unless petitioners can pinpoint a The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the present petitions
specific item in the current budget that allows expenditure under the agreement, we cannot at this time involve matters of transcendental importance in order to cure their inability to comply with the constitutional
rule that there is in fact an appropriation or a disbursement of funds that would justify the filing of a requirement of standing. Respondent bewails the overuse of "transcendental importance" as an exception to the
taxpayers' suit. traditional requirements of constitutional litigation. It stresses that one of the purposes of these requirements is to
Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list representatives have the standing protect the Supreme Court from unnecessary litigation of constitutional questions.
to challenge the act of the Executive Department, especially if it impairs the constitutional prerogatives, powers, In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal standing,
and privileges of their office. While they admit that there is no incumbent Senator who has taken part in the especially when paramount interest is involved. Indeed, when those who challenge the official act are able to
present petition, they nonetheless assert that they also stand to sustain a derivative but substantial injury as craft an issue of transcendental significance to the people, the Court may exercise its sound discretion and take
legislators. They argue that under the Constitution, legislative power is vested in both the Senate and the House cognizance of the suit. It may do so in spite of the inability of the petitioners to show that they have been
of Representatives; consequently, it is the entire Legislative Department that has a voice in determining whether personally injured by the operation of a law or any other government act.
or not the presence of foreign military should be allowed. They maintain that as members of the Legislature, they While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that not every
have the requisite personality to bring a suit, especially when a constitutional issue is raised. other case, however strong public interest may be, can qualify as an issue of transcendental importance. Before
The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the lack of it can be impelled to brush aside the essential requisites for exercising its power of judicial review, it must at the
Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and international very least consider a number of factors: (1) the character of the funds or other assets involved in the case; (2)
agreements is an "institutional prerogative" granted by the Constitution to the Senate. Accordingly, the OSG the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
argues that in case of an allegation of impairment of that power, the injured party would be the Senate as an agency or instrumentality of the government; and (3) the lack of any other party that has a more direct and
institution or any of its incumbent members, as it is the Senate's constitutional function that is allegedly being specific interest in raising the present questions.141
violated. An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows that
The legal standing of an institution of the Legislature or of any of its Members has already been recognized by petitioners have presented serious constitutional issues that provide ample justification for the Court to set aside
this Court in a number of cases. 131 What is in question here is the alleged impairment of the constitutional duties the rule on standing. The transcendental importance of the issues presented here is rooted in the Constitution
and powers granted to, or the impermissible intrusion upon the domain of, the Legislature or an institution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter mechanism required before
thereof.132 In the case of suits initiated by the legislators themselves, this Court has recognized their standing to foreign military troops, facilities, or bases may be allowed in the country. The DFA has already confirmed to the
question the validity of any official action that they claim infringes the prerogatives, powers, and privileges vested U.S. Embassy that "all internal requirements of the Philippines x x x have already been complied with."142 It
by the Constitution in their office.133 As aptly explained by Justice Perfecto in Mabanag v. Lopez Vito:134 behooves the Court in this instance to take a liberal stance towards the rule on standing and to determine
Being members of Congress, they are even duty bound to see that the latter act within the bounds of the forthwith whether there was grave abuse of discretion on the part of the Executive Department.
Constitution which, as representatives of the people, they should uphold, unless they are to commit a flagrant We therefore rule that this case is a proper subject for judicial review.
betrayal of public trust. They are representatives of the sovereign people and it is their sacred duty to see to it
 B. Whether the President may enter into an executive agreement on foreign military bases, "take necessary and proper steps to carry into execution the law." 162 Justice George Malcolm states this
troops, or facilities principle in a grand manner:163
C. Whether the provisions under EDCA are consistent with the Constitution, as well as with The executive should be clothed with sufficient power to administer efficiently the affairs of state. He should have
existing laws and treaties complete control of the instrumentalities through whom his responsibility is discharged. It is still true, as said by
Issues B and C shall be discussed together infra. Hamilton, that "A feeble executive implies a feeble execution of the government. A feeble execution is but
1. The role of the President as the executor of the law includes the duty to defend the State, for which another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be in
purpose he may use that power in the conduct of foreign relations practice a bad government." The mistakes of State governments need not be repeated here.
Historically, the Philippines has mirrored the division of powers in the U.S. government. When the Philippine xxxx
government was still an agency of the Congress of the U.S., it was as an agent entrusted with powers Every other consideration to one side, this remains certain - The Congress of the United States clearly intended
categorized as executive, legislative, and judicial, and divided among these three great branches.143 By this that the Governor-General's power should be commensurate with his responsibility. The Congress never
division, the law implied that the divided powers cannot be exercised except by the department given the intended that the Governor-General should be saddled with the responsibility of administering the government
power.144 and of executing the laws but shorn of the power to do so. The interests of the Philippines will be best served by
This divide continued throughout the different versions of the Philippine Constitution and specifically vested the strict adherence to the basic principles of constitutional government.
supreme executive power in the Governor-General of the Philippines, 145 a position inherited by the President of In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary for
the Philippines when the country attained independence. One of the principal functions of the supreme executive Philippine defense interests. It is no coincidence that the constitutional provision on the faithful execution clause
is the responsibility for the faithful execution of the laws as embodied by the oath of office. 146 The oath of the was followed by that on the President's commander-in-chief powers, 164 which are specifically granted during
President prescribed by the 1987 Constitution reads thus: extraordinary events of lawless violence, invasion, or rebellion. And this duty of defending the country is
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or unceasing, even in times when there is no state of lawlesss violence, invasion, or rebellion. At such times, the
Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do President has full powers to ensure the faithful execution of the laws.
justice to every man, and consecrate myself to the service of the Nation. So help me God. (In case of affirmation, It would therefore be remiss for the President and repugnant to the faithful-execution clause of the Constitution to
last sentence will be omitted.)147 (Emphases supplied) do nothing when the call of the moment requires increasing the military's defensive capabilities, which could
This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a include forging alliances with states that hold a common interest with the Philippines or bringing an international
separate grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty in no uncertain terms suit against an offending state.
and includes it in the provision regarding the President's power of control over the executive department, viz: The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting Opinion as the
The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the beginning of a "patent misconception."165 His dissent argues that this approach taken in analyzing the President's
laws be faithfully executed. role as executor of the laws is preceded by the duty to preserve and defend the Constitution, which was allegedly
The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the President. overlooked.166
In the 1973 Constitution, for instance, the provision simply gives the President control over the ministries. 149 A In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the analysis, if
similar language, not in the form of the President's oath, was present in the 1935 Constitution, particularly in the read holistically and in context. The concept that the President cannot function with crippled hands and therefore
enumeration of executive functions.150 By 1987, executive power was codified not only in the Constitution, but can disregard the need for Senate concurrence in treaties167 was never expressed or implied. Rather, the
also in the Administrative Code:151 appropriate reading of the preceding analysis shows that the point being elucidated is the reality that the
SECTION 1. Power of Control. - The President shall have control of all the executive departments, bureaus, and President's duty to execute the laws and protect the Philippines is inextricably interwoven with his foreign affairs
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied) powers, such that he must resolve issues imbued with both concerns to the full extent of his powers, subject only
Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the limits supplied by law. In other words, apart from an expressly mandated limit, or an implied limit by virtue
to the other executive functions. These functions include the faithful execution of the law in autonomous of incompatibility, the manner of execution by the President must be given utmost deference. This approach is
regions;152 the right to prosecute crimes;153 the implementation of transportation projects;154 the duty to ensure not different from that taken by the Court in situations with fairly similar contexts.
compliance with treaties, executive agreements and executive orders;155 the authority to deport undesirable Thus, the analysis portrayed by the dissent does not give the President authority to bypass constitutional
aliens;156 the conferment of national awards under the President's jurisdiction;157 and the overall administration safeguards and limits. In fact, it specifies what these limitations are, how these limitations are triggered, how
and control of the executive department.158 these limitations function, and what can be done within the sphere of constitutional duties and limitations of the
These obligations are as broad as they sound, for a President cannot function with crippled hands, but must be President.
capable of securing the rule of law within all territories of the Philippine Islands and be empowered to do so Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign relations
within constitutional limits. Congress cannot, for instance, limit or take over the President's power to adopt power of the President should not be interpreted in isolation.168 The analysis itself demonstrates how the foreign
implementing rules and regulations for a law it has enacted.159 affairs function, while mostly the President's, is shared in several instances, namely in Section 2 of Article II on
More important, this mandate is self-executory by virtue of its being inherently executive in nature. 160 As Justice the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Antonio T. Carpio previously wrote,161 Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII
[i]f the rules are issued by the President in implementation or execution of self-executory constitutional powers on treaties and international agreements entered into prior to the Constitution and on the presence of foreign
vested in the President, the rule-making power of the President is not a delegated legislative power. The most military troops, bases, or facilities.
important self-executory constitutional power of the President is the President's constitutional duty and mandate In fact, the analysis devotes a whole subheading to the relationship between the two major presidential functions
to "ensure that the laws be faithfully executed." The rule is that the President can execute the law without any and the role of the Senate in it.
delegation of power from the legislature. This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not novel to the
The import of this characteristic is that the manner of the President's execution of the law, even if not Court. The President's act of treating EDCA as an executive agreement is not the principal power being analyzed
expressly granted by the law, is justified by necessity and limited only by law, since the President must 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 requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and
stated recently in Vinuya v. Romulo: recognized as a treaty by the other contracting State.
To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic requirements
authority to construe or invalidate treaties and executive agreements. However, the question whether the of a treaty under Section 21 of Article VII. This means that both provisions must be read as additional limitations
Philippine government should espouse claims of its nationals against a foreign government is a foreign relations to the President's overarching executive function in matters of defense and foreign relations.
matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political 3. The President, however, may enter into an executive agreement on foreign military bases, troops, or
branches. In this case, the Executive Department has already decided that it is to the best interest of the country facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or
to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of facilities; or (b) it merely aims to implement an existing law or treaty.
such decision is not for the courts to question. Neither could petitioners herein assail the said determination by Again we refer to Section 25, Article XVIII of the Constitution:
the Executive Department via the instant petition for certiorari. SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he President is the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
sole organ of the nation in its external relations, and its sole representative with foreign relations." allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress
It is quite apparent that if, in the maintenance of our international relations, embarrassment - so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose,
perhaps serious embarrassment - is to be avoided and success for our aims achieved, and recognized as a treaty by the other contracting State. (Emphases supplied)
congressional legislation which is to be made effective through negotiation and inquiry within In view of this provision, petitioners argue 170 that EDCA must be in the form of a "treaty" duly concurred in by the
the international field must often accord to the President a degree of discretion and Senate. They stress that the Constitution is unambigous in mandating the transmission to the Senate of all
freedom from statutory restriction which would not be admissible where domestic international agreements concluded after the expiration of the MBA in 1991 - agreements that concern the
affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the presence of foreign military bases, troops, or facilities in the country. Accordingly, petitioners maintain that the
conditions which prevail in foreign countries, and especially is this true in time of war. He has Executive Department is not given the choice to conclude agreements like EDCA in the form of an executive
his confidential sources of information. He has his agents in the form of diplomatic, consular agreement.
and other officials .... This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against and 2
This ruling has been incorporated in our jurisprudence through Bavan v. Executive abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty for concurrence
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated in by at least two-thirds of all its members.
(now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion: The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to support its
. . . The conduct of foreign relations is full of complexities and consequences, sometimes with position. Compared with the lone constitutional provision that the Office of the Solicitor General (OSG) cites,
life and death significance to the nation especially in times of war. It can only be entrusted to which is Article XVIII, Section 4(2), which includes the constitutionality of "executive agreement(s)" among the
that department of government which can act on the basis of the best available information cases subject to the Supreme Court's power of judicial review, the Constitution clearly requires submission of
and can decide with decisiveness .... It is also the President who possesses the most EDCA to the Senate. Two specific provisions versus one general provision means that the specific provisions
comprehensive and the most confidential information about foreign countries for our diplomatic prevail. The term "executive agreement" is "a term wandering alone in the Constitution, bereft of provenance and
and consular officials regularly brief him on meaningful events all over the world. He has also an unidentified constitutional mystery."
unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the MDT, which
foreign affairs is dominant and the President is traditionally accorded a wider degree of the Executive claims to be partly implemented through EDCA, is already obsolete.
discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the comment on
adjudged under less stringent standards, lest their judicial repudiation lead to breach of interpellation made by Senator Santiago.
an international obligation, rupture of state relations, forfeiture of confidence, national First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the powers
embarrassment and a plethora of other problems with equally undesirable of the President. When the Court validated the concept of "executive agreement," it did so with full knowledge of
consequences.169 (Emphases supplied) the Senate's role in concurring in treaties. It was aware of the problematique of distinguishing when an
Understandably, this Court must view the instant case with the same perspective and understanding, knowing full international agreement needed Senate concurrence for validity, and when it did not; and the Court continued to
well the constitutional and legal repercussions of any judicial overreach. validate the existence of "executive agreements" even after the 1987 Constitution. 172 This follows a long line of
2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops or facilities, similar decisions upholding the power of the President to enter into an executive agreement.173
except by way of a treaty concurred in by the Senate - a clear limitation on the President's dual role as Second, the MDT has not been rendered obsolescent, considering that as late as 2009,174 this Court continued to
defender of the State and as sole authority in foreign relations. recognize its validity.
Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987 Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion that it
Constitution expressly limits his ability in instances when it involves the entry of foreign military bases, troops or applies only to a proposed agreement between our government and a foreign government, whereby military
facilities. The initial limitation is found in Section 21 of the provisions on the Executive Department: "No treaty or bases, troops, or facilities of such foreign government would be "allowed" or would "gain entry" Philippine
international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members territory.
of the Senate." The specific limitation is given by Section 25 of the Transitory Provisions, the full text of which Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the President is
reads as follows: not authorized by law to allow foreign military bases, troops, or facilities to enter the Philippines, except under a
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the treaty concurred in by the Senate. Hence, the constitutionally restricted authority pertains to the entry of the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be bases, troops, or facilities, and not to the activities to be done after entry.
allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so 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 treaties between the Philippines and the U.S. that have already been concurred in by the Philippine Senate and
from going beyond the plain meaning of the words used in the Constitution. It is presumed that the framers and have thereby met the requirements of the Constitution under Section 25. Because of the status of these prior
the people meant what they said when they said it, and that this understanding was reflected in the Constitution agreements, respondent emphasizes that EDCA need not be transmitted to the Senate.
and understood by the people in the way it was meant to be understood when the fundamental law was ordained The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
and promulgated.177 As this Court has often said: legis construction to the words of Article XVIII, Section 25. 187 It claims that the provision is "neither plain, nor that
We look to the language of the document itself in our search for its meaning. We do not of course stop there, but simple."188 To buttress its disagreement, the dissent states that the provision refers to a historical incident, which
that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express is the expiration of the 1947 MBA. 189 Accordingly, this position requires questioning the circumstances that led to
the objective sought to be attained. They are to be given their ordinary meaning except where technical the historical event, and the meaning of the terms under Article XVIII, Section 25.
terms are employed in which case the significance thus attached to them prevails. As the Constitution is not This objection is quite strange. The construction technique of verba legis is not inapplicable just because a
primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in provision has a specific historical context. In fact, every provision of the Constitution has a specific historical
the people's consciousness, its language as much as possible should be understood in the sense they context. The purpose of constitutional and statutory construction is to set tiers of interpretation to guide the Court
have in common use. What it says according to the text of the provision to be construed compels acceptance as to how a particular provision functions. Verba legis is of paramount consideration, but it is not the only
and negates the power of the courts to alter it, based on the postulate that the framers and the people mean consideration. As this Court has often said:
what they say. Thus, these are the cases where the need for construction is reduced to a We look to the language of the document itself in our search for its meaning. We do not of course stop there,
minimum.178(Emphases supplied) but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched
It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that further express the objective sought to be attained. They are to be given their ordinary meaning except where
construction must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180 we technical terms are employed in which case the significance thus attached to them prevails. As the
reiterated this guiding principle: Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever
it [is] safer to construe the Constitution from what appears upon its face. The proper interpretation be present in the people's consciousness, its language as much as possible should be understood in the
therefore depends more on how it was understood by the people adopting it than in the framers' sense they have in common use. What it says according to the text of the provision to be construed compels
understanding thereof. (Emphases supplied) acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the
The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be allowed in the people mean what they say. Thus, these are the cases where the need for construction is reduced to a
Philippines" plainly refers to the entry of bases, troops, or facilities in the country. The Oxford English minimum.190(Emphases supplied)
Dictionary defines the word "allow" as a transitive verb that means "to permit, enable"; "to give consent to the As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase being construed
occurrence of or relax restraint on (an action, event, or activity)"; "to consent to the presence or attendance of (a is "shall not be allowed in the Philippines" and not the preceding one referring to "the expiration in 1991 of the
person)"; and, when with an adverbial of place, "to permit (a person or animal) to go, come, or be in, out, near, Agreement between the Republic of the Philippines and the United States of America concerning Military Bases,
etc."181 Black's Law Dictionary defines the term as one that means "[t]o grant, approve, or permit."182 foreign military bases, troops, or facilities." It is explicit in the wording of the provision itself that any interpretation
The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or position in space or goes beyond the text itself and into the discussion of the framers, the context of the Constitutional Commission's
anything having material extension: Within the limits or bounds of, within (any place or thing)." 183 That something time of drafting, and the history of the 1947 MBA. Without reference to these factors, a reader would not
is the Philippines, which is the noun that follows. understand those terms. However, for the phrase "shall not be allowed in the Philippines," there is no need for
It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases, troops, such reference. The law is clear. No less than the Senate understood this when it ratified the VFA.
or facilities. Once entry is authorized, the subsequent acts are thereafter subject only to the limitations provided 4. The President may generally enter into executive agreements subject to limitations defined by the
by the rest of the Constitution and Philippine law, and not to the Section 25 requirement of validity through a Constitution and may be in furtherance of a treaty already concurred in by the Senate.
treaty. We discuss in this section why the President can enter into executive agreements.
The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v. Executive It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more exacting
Secretary: requirement was introduced because of the previous experience of the country when its representatives felt
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" compelled to consent to the old MBA.191 They felt constrained to agree to the MBA in fulfilment of one of the
arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in major conditions for the country to gain independence from the U.S. 192 As a result of that experience, a second
negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than layer of consent for agreements that allow military bases, troops and facilities in the country is now articulated in
military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to Article XVIII of our present Constitution.
protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster This second layer of consent, however, cannot be interpreted in such a way that we completely ignore the intent
relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, of our constitutional framers when they provided for that additional layer, nor the vigorous statements of this
and the like. Court that affirm the continued existence of that class of international agreements called "executive agreements."
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume The power of the President to enter into binding executive agreements without Senate concurrence is already
that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella well-established in this jurisdiction.193 That power has been alluded to in our present and past Constitutions, 194 in
of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual various statutes,195 in Supreme Court decisions,196 and during the deliberations of the Constitutional
Defense Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself- Commission.197 They cover a wide array of subjects with varying scopes and purposes, 198 including those that
such as the one subject of the instant petition, are indeed authorized.184 (Emphasis supplied) involve the presence of foreign military forces in the country.199
Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military troops in As the sole organ of our foreign relations200 and the constitutionally assigned chief architect of our foreign
the Philippines,185 readily implying the legality of their initial entry into the country. policy,201the President is vested with the exclusive power to conduct and manage the country's interface with
The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely involves other states and governments. Being the principal representative of the Philippines, the Chief Executive speaks
"adjustments in detail" in the implementation of the MDT and the VFA.186 It points out that there are existing 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 concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea
other economic relations; and settles international disputes with other states.202 Trading, the Constitutional Commission members ultimately decided that the term "international agreements" as
As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter contemplated in Section 21, Article VII, does not include executive agreements, and that a proviso is no longer
into agreements with other states, including the prerogative to conclude binding executive agreements that do needed. Their discussion is reproduced below:207
not require further Senate concurrence. The existence of this presidential power 203 is so well-entrenched that MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words
Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its exercise. As expressed below, "international agreement" which I think is the correct judgment on the matter because an international agreement
executive agreements are among those official governmental acts that can be the subject of this Court's power of is different from a treaty. A treaty is a contract between parties which is in the nature of international agreement
judicial review: and also a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court would like to be clarified if the international agreements include executive agreements.
may provide, final judgments and orders of lower courts in: MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the
(a) All cases in which the constitutionality or conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards
validity of any treaty, international or executive agreement, law, presidential decree, the parties.
proclamation, order, instruction, ordinance, or regulation is in question. (Emphases supplied) MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement?
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as "international According to common usage, there are two types of executive agreement: one is purely proceeding from an
agreements embodying adjustments of detail carrying out well-established national policies and traditions and executive act which affects external relations independent of the legislative and the other is an executive
those involving arrangements of a more or less temporary nature."204 In Bayan Muna v. Romulo, this Court further act in pursuance of legislative authorization. The first kind might take the form of just conventions or
clarified that executive agreements can cover a wide array of subjects that have various scopes and exchanges of notes or protocol while the other, which would be pursuant to the legislative authorization,
purposes.205 They are no longer limited to the traditional subjects that are usually covered by executive may be in the nature of commercial agreements.
agreements as identified in Eastern Sea Trading. The Court thoroughly discussed this matter in the following MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or
manner: to determine the details for the implementation of the treaty. We are speaking of executive agreements, not
The categorization of subject matters that may be covered by international international agreements.
agreementsmentioned in Eastern Sea Trading is not cast in stone. x x x. MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive agreement
As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea which is just protocol or an exchange of notes and this would be in the nature of reinforcement of claims of a
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of citizen against a country, for example.
international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines is
the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such concerned.
as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains to us
corps, arms limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea otherwise, an explicit proviso which would except executive agreements from the requirement of
Trading cannot circumscribe the option of each state on the matter of which the international agreement concurrence of two-thirds of the Members of the Senate. Unless I am enlightened by the Committee I
format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier: propose that tentatively, the sentence should read. "No treaty or international agreement EXCEPT EXECUTIVE
. . . It would be useless to undertake to discuss here the large variety of executive agreements as such AGREEMENTS shall be valid and effective."
concluded from time to time. Hundreds of executive agreements, other than those entered into under the FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading] might help
trade-agreement act, have been negotiated with foreign governments. . . . They cover such subjects as the clarify this:
inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom The right of the executive to enter into binding agreements without the necessity of subsequent
matters and commercial relations generally, international claims, postal matters, the registration of trademarks Congressional approval has been confirmed by long usage. From the earliest days of our history, we have
and copyrights, etc .... (Emphases Supplied) entered into executive agreements covering such subjects as commercial and consular relations, most favored
One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the
a lack of Senate concurrence.206 This distinctive feature was recognized as early as in Eastern Sea settlement of claims. The validity of this has never been seriously questioned by our Courts.
Trading (1961), viz: Agreements with respect to the registration of trademarks have been concluded by the executive of various
Treaties are formal documents which require ratification with the approval of two-thirds of the countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving
Senate. Executive agreements become binding through executive action without the need of a vote by the political issues or changes of national policy and those involving international agreements of a permanent
Senate or by Congress. character usually take the form of treaties. But international agreements embodying adjustments of detail,
xxxx carrying out well established national policies and traditions and those involving arrangements of a more
[T]he right of the Executive to enter into binding agreements without the necessity of subsequent or less temporary nature usually take the form of executive agreements.
Congressional approval has been confirmed by long usage. From the earliest days of our history we have MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
entered into executive agreements covering such subjects as commercial and consular relations, most-favored- FR. BERNAS: What we are referring to, therefore, when we say international agreements which need
nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the concurrence by at least two-thirds are those which are permanent in nature.
settlement of claims. The validity of these has never been seriously questioned by our courts. (Emphases MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but which
Supplied) are proceeding from the authorization of Congress. If that is our understanding, then I am willing to withdraw that
That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on whether amendment.
the general term "international agreement" included executive agreements, and whether it was necessary to FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
include an express proviso that would exclude executive agreements from the requirement of Senate concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment. First, executive agreements must remain traceable to an express or implied authorization under the Constitution,
MR. TINGSON: Madam President. statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements
THE PRESIDENT: Is Commissioner Aquino satisfied? under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted
MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive agreements" by the Legislature, not to defeat or interfere in the performance of these rules. 214 In turn, executive agreements
and that would make unnecessary any explicit proviso on the matter. cannot create new international obligations that are not expressly allowed or reasonably implied in the law they
xxx purport to implement.
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of
executive agreements must rely on treaties. In other words, there must first be treaties. the acts of the Executive and the Senate 215 unlike executive agreements, which are solely executive
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the actions.216Because of legislative participation through the Senate, a treaty is regarded as being on the same level
implementation of treaties, details of which do not affect the sovereignty of the State. as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be considered prior.218 An executive agreement is treated differently. Executive agreements that are inconsistent with either a
permanent? What would be the measure of permanency? I do not conceive of a treaty that is going to be forever, law or a treaty are considered ineffective. 219 Both types of international agreement are nevertheless subject to the
so there must be some kind of a time limit. supremacy of the Constitution.220
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be This rule does not imply, though, that the President is given carte blanche to exercise this discretion. Although
included in a provision of the Constitution requiring the concurrence of Congress. the Chief Executive wields the exclusive authority to conduct our foreign relations, this power must still be
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the executive exercised within the context and the parameters set by the Constitution, as well as by existing domestic and
agreement partakes of the nature of a treaty, then it should also be included. international laws. There are constitutional provisions that restrict or limit the President's prerogative in
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the concluding international agreements, such as those that involve the following:
Constitutional Commission to require that. a. The policy of freedom from nuclear weapons within Philippine territory221
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international agreements" b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
would include executive agreements. imposts, which must be pursuant to the authority granted by Congress222
MR. CONCEPCION: No, not necessarily; generally no. c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the
xxx Members of Congress223
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as far as the d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously
Committee is concerned, the term "international agreements" does not include the term "executive concurred in by the Monetary Board224
agreements" as read by the Commissioner in that text? e. The authorization of the presence of foreign military bases, troops, or facilities in the country must be
FR. BERNAS: Yes. (Emphases Supplied) in the form of a treaty duly concurred in by the Senate.225
The inapplicability to executive agreements of the requirements under Section 21 was again recognized f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should
in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the present the form of the government chosen be a treaty.
Constitution, quoted Eastern Sea Trading in reiterating that executive agreements are valid and binding even 5. The President had the choice to enter into EDCA by way of an executive agreement or a treaty.
without the concurrence of the Senate. No court can tell the President to desist from choosing an executive agreement over a treaty to embody an
Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate international agreement, unless the case falls squarely within Article VIII, Section 25.
with which they are concluded. As culled from the afore-quoted deliberations of the Constitutional Commission, As can be gleaned from the debates among the members of the Constitutional Commission, they were aware
past Supreme Court Decisions, and works of noted scholars, 208 executive agreements merely involve that legally binding international agreements were being entered into by countries in forms other than a treaty. At
arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded (1) to the same time, it is clear that they were also keen to preserve the concept of "executive agreements" and the
adjust the details of a treaty;209 (2) pursuant to or upon confirmation by an act of the Legislature; 210 or (3) in the right of the President to enter into such agreements.
exercise of the President's independent powers under the Constitution. 211 The raison d'etre of executive What we can glean from the discussions of the Constitutional Commissioners is that they understood the
agreements hinges on prior constitutional or legislative authorizations. following realities:
The special nature of an executive agreement is not just a domestic variation in international agreements. 1. Treaties, international agreements, and executive agreements are all constitutional manifestations of
International practice has accepted the use of various forms and designations of international agreements, the conduct of foreign affairs with their distinct legal characteristics.
ranging from the traditional notion of a treaty - which connotes a formal, solemn instrument - to engagements a. Treaties are formal contracts between the Philippines and other States-parties, which are in
concluded in modem, simplified forms that no longer necessitate ratification. 212 An international agreement may the nature of international agreements, and also of municipal laws in the sense of their binding
take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, nature.226
declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus b. International agreements are similar instruments, the provisions of which may require the
vivendi, or some other form.213 Consequently, under international law, the distinction between a treaty and an ratification of a designated number of parties thereto. These agreements involving political
international agreement or even an executive agreement is irrelevant for purposes of determining international issues or changes in national policy, as well as those involving international agreements of a
rights and obligations. permanent character, usually take the form of treaties. They may also include commercial
However, this principle does not mean that the domestic law distinguishing treaties, international agreements, which are executive agreements essentially, but which proceed from previous
agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional authorization by Congress, thus dispensing with the requirement of concurrence by the
requirement of Senate concurrence is demoted to an optional constitutional directive. There remain two very Senate.227
important features that distinguish treaties from executive agreements and translate them into terms of art in the
domestic setting.
 c. Executive agreements are generally intended to implement a treaty already enforced or to or a statute requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the
determine the details of the implementation thereof that do not affect the sovereignty of the President in the field of foreign affairs, the task of the Court is to determine whether the international agreement
State.228 is consistent with the applicable limitations.
2. Treaties and international agreements that cannot be mere executive agreements must, by 6. Executive agreements may cover the matter of foreign military forces if it merely involves detail
constitutional decree, be concurred in by at least two-thirds of the Senate. adjustments.
3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or The practice of resorting to executive agreements in adjusting the details of a law or a treaty that already deals
facilities - is particularly restricted. The requirements are that it be in the form of a treaty concurred in by with the presence of foreign military forces is not at all unusual in this jurisdiction. In fact, the Court has already
the Senate; that when Congress so requires, it be ratified by a majority of the votes cast by the people implicitly acknowledged this practice in Lim v. Executive Secretary.231 In that case, the Court was asked to
in a national referendum held for that purpose; and that it be recognized as a treaty by the other scrutinize the constitutionality of the Terms of Reference of the Balikatan 02-1 joint military exercises, which
contracting State. sought to implement the VFA. Concluded in the form of an executive agreement, the Terms of Reference detailed
4. Thus, executive agreements can continue to exist as a species of international agreements. the coverage of the term "activities" mentioned in the treaty and settled the matters pertaining to the construction
That is why our Court has ruled the way it has in several cases. of temporary structures for the U.S. troops during the activities; the duration and location of the exercises; the
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional authority and number of participants; and the extent of and limitations on the activities of the U.S. forces. The Court upheld the
discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the form of an executive Terms of Reference as being consistent with the VFA. It no longer took issue with the fact that
agreement, instead of a treaty, and in ratifying the agreement without Senate concurrence. The Court en the Balikatan Terms of Reference was not in the form of a treaty concurred in by the Senate, even if it dealt with
banc discussed this intrinsic presidential prerogative as follows: the regulation of the activities of foreign military forces on Philippine territory.
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an attempt to
treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point, petitioner submits that the adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the Romulo-Kenney
subject of the Agreement does not fall under any of the subject-categories that xx x may be covered by an Agreement, which undertook to clarify the detention of a U.S. Armed Forces member, whose case was pending
executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, appeal after his conviction by a trial court for the crime of rape. In testing the validity of the latter agreement, the
trademark and copyright protection, postal and navigation arrangements and settlement of claims. Court precisely alluded to one of the inherent limitations of an executive agreement: it cannot go beyond the
The categorization of subject matters that may be covered by international agreements mentioned in Eastern terms of the treaty it purports to implement. It was eventually ruled that the Romulo-Kenney Agreement was "not
Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given in accord" with the VFA, since the former was squarely inconsistent with a provision in the treaty requiring that
subject, into a treaty or an executive agreement as an instrument of international relations. The primary the detention be "by Philippine authorities." Consequently, the Court ordered the Secretary of Foreign Affairs to
consideration in the choice of the form of agreement is the parties' intent and desire to craft an comply with the VFA and "forthwith negotiate with the United States representatives for the appropriate
international agreement in the form they so wish to further their respective interests. Verily, the matter of agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA. "233
form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in resolving the
executive agreement, as the parties in either international agreement each labor under the pacta sunt present controversy:
servanda principle. 1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be fulfilled by
xxxx the international agreement allowing the presence of foreign military bases, troops, or facilities in the
But over and above the foregoing considerations is the fact that - save for the situation and matters Philippines: (a) the agreement must be in the form of a treaty, and (b) it must be duly concurred in by
contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution does not the Senate.
classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What 2. If the agreement is not covered by the above situation, then the President may choose the form of the
the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein agreement (i.e., either an executive agreement or a treaty), provided that the agreement dealing with
to complete the ratification process. foreign military bases, troops, or facilities is not the principal agreement that first allows their entry or
xxxx presence in the Philippines.
x x x. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, 3. The executive agreement must not go beyond the parameters, limitations, and standards set by the
as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding law and/or treaty that the former purports to implement; and must not unduly expand the international
executive agreements has been confirmed by long practice. obligation expressly mentioned or necessarily implied in the law or treaty.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria Macapagal-Arroyo, 4. The executive agreement must be consistent with the Constitution, as well as with existing laws and
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion treaties.
vested in her by the Constitution. At the end of the day, the President - by ratifying, thru her deputies, the In light of the President's choice to enter into EDCA in the form of an executive agreement, respondents carry the
non-surrender agreement - did nothing more than discharge a constitutional duty and exercise a burden of proving that it is a mere implementation of existing laws and treaties concurred in by the Senate.
prerogative that pertains to her office. (Emphases supplied) EDCA must thus be carefully dissected to ascertain if it remains within the legal parameters of a valid executive
Indeed, in the field of external affairs, the President must be given a larger measure of authority and wider agreement.
discretion, subject only to the least amount of checks and restrictions under the Constitution. 229 The rationale 7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA
behind this power and discretion was recognized by the Court in Vinuya v. Executive Secretary, cited earlier.230 The starting point of our analysis is the rule that "an executive agreement xx x may not be used to amend a
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the question of the
Ratification, thus, correctly reflected the inherent powers of the President when it stated that the DFA "shall validity of executive agreements by comparing them with the general framework and the specific provisions of
determine whether an agreement is an executive agreement or a treaty." the treaties they seek to implement.
Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework of the
agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution 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 1 236 and II237 of the VFA. It later on found As previously mentioned, these points shall be addressed fully and individually in the latter analysis of EDCA's
that the term "activities" was deliberately left undefined and ambiguous in order to permit "a wide scope of provisions. However, it must already be clarified that the terms and details used by an implementing agreement
undertakings subject only to the approval of the Philippine government"238 and thereby allow the parties "a certain need not be found in the mother treaty. They must be sourced from the authority derived from the treaty, but are
leeway in negotiation."239 The Court eventually ruled that the Terms of Reference fell within the sanctioned or not necessarily expressed word-for-word in the mother treaty. This concern shall be further elucidated in this
allowable activities, especially in the context of the VFA and the MDT. Decision.
The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on custody and The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that may be
detention to ascertain the validity of the Romulo-Kenney Agreement. 240 It eventually found that the two construed as a restriction on or modification of obligations found in existing statues, including the jurisdiction of
international agreements were not in accord, since the Romulo-Kenney Agreement had stipulated that U.S. courts, local autonomy, and taxation. Implied in this argument is that EDCA contains such restrictions or
military personnel shall be detained at the U.S. Embassy Compound and guarded by U.S. military personnel, modifications.249
instead of by Philippine authorities. According to the Court, the parties "recognized the difference between This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA ensure
custody during the trial and detention after conviction."241 Pursuant to Article V(6) of the VFA, the custody of a Philippine jurisdiction in all instances contemplated by both agreements, with the exception of those outlined by
U.S. military personnel resides with U.S. military authorities during trial. Once there is a finding of guilt, Article the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes are assumed by the
V(l0) requires that the confinement or detention be "by Philippine authorities." government as will be discussed later on. This fact does not, therefore, produce a diminution of jurisdiction on the
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends the part of the Philippines, but rather a recognition of sovereignty and the rights that attend it, some of which may be
VFA"242and follows with an enumeration of the differences between EDCA and the VFA. While these arguments waived as in the cases under Articles III-VI of the VFA.
will be rebutted more fully further on, an initial answer can already be given to each of the concerns raised by his Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and the VFA,
dissent. which are the two treaties from which EDCA allegedly draws its validity.
The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows temporary "Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S. personnel and
stationing on a rotational basis of U.S. military personnel and their contractors in physical locations with (2) U.S. contractors
permanent facilities and pre-positioned military materiel. The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains that EDCA
This argument does not take into account that these permanent facilities, while built by U.S. forces, are to be articulates the principle of defensive preparation embodied in Article II of the MDT; and seeks to enhance the
owned by the Philippines once constructed.243 Even the VFA allowed construction for the benefit of U.S. forces defensive, strategic, and technological capabilities of both parties pursuant to the objective of the treaty to
during their temporary visits. strengthen those capabilities to prevent or resist a possible armed attack. Respondent also points out that EDCA
The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel, which can simply implements Article I of the VFA, which already allows the entry of U.S. troops and personnel into the
include various types of warships, fighter planes, bombers, and vessels, as well as land and amphibious vehicles country. Respondent stresses this Court's recognition in Lim v. Executive Secretary that U.S. troops and
and their corresponding ammunition.244 personnel are authorized to conduct activities that promote the goal of maintaining and developing their defense
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be brought into capability.
the country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials, supplies, and other Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT. According to them,
property are imported into or acquired in the Philippines by or on behalf of the U.S. Armed Forces; as are the treaty does not specifically authorize the entry of U.S. troops in the country in order to maintain and develop
vehicles, vessels, and aircraft operated by or for U.S. forces in connection with activities under the VFA. These the individual and collective capacities of both the Philippines and the U.S. to resist an armed attack. They
provisions likewise provide for the waiver of the specific duties, taxes, charges, and fees that correspond to these emphasize that the treaty was concluded at a time when there was as yet no specific constitutional prohibition on
equipment. the presence of foreign military forces in the country.
The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of troops Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the agreement
for training exercises, whereas EDCA allows the use of territory for launching military and paramilitary operations covers only short-term or temporary visits of U.S. troops "from time to time" for the specific purpose
conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA was of combined military exercises with their Filipino counterparts. They stress that, in contrast, U.S. troops are
intended for non-combat activides only, whereas the entry and activities of U.S. forces into Agreed Locations allowed under EDCA to perform activities beyond combined military exercises, such as those enumerated in
were borne of military necessity or had a martial character, and were therefore not contemplated by the VFA.246 Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of permanence in the presence of U.S.
This Court's jurisprudence however established in no uncertain terms that combat-related activities, as opposed troops in the country, since the effectivity of EDCA is continuous until terminated. They proceed to argue that
to actual combat, were allowed under the MDT and VFA, viz: while troops have a "rotational" presence, this scheme in fact fosters their permanent presence.
Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under the VFA
activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized.247 We shall first deal with the recognition under EDCA of the presence in the country of three distinct classes of
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent of the VFA individuals who will be conducting different types of activities within the Agreed Locations: (1) U.S. military
since EDCA's combat-related components are allowed under the treaty. personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to them as follows:
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and EDCA deal "United States personnel" means United States military and civilian personnel temporarily in the territory
with the presence of U.S. forces within the Philippines, but make no mention of being platforms for activity of the Philippines in connection with activities approved by the Philippines, as those terms are defined in
beyond Philippine territory. While it may be that, as applied, military operations under either the VFA or EDCA the VFA.252
would be carried out in the future the scope of judicial review does not cover potential breaches of discretion but "United States forces" means the entity comprising United States personnel and all property, equipment,
only actual occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on the basis of the and materiel of the United States Armed Forces present in the territory of the Philippines.253
potentially abusive use of its provisions. "United States contractors" means companies and firms, and their employees, under contract or
The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA or the subcontract to or on behalf of the United States Department of Defense. United States contractors
MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248 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 Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S. contractors into
construction) to be furnished or undertaken in the territory of the Philippines without restriction as to choice of the country.259 We emphasize that the admission of aliens into Philippine territory is "a matter of pure permission
contractor, supplier, or person who provides such materiel, supplies, equipment, or services. Such contracts and simple tolerance which creates no obligation on the part of the government to permit them to stay." 260 Unlike
shall be solicited, awarded, and administered in accordance with the laws and regulations of the United U.S. personnel who are accorded entry accommodations, U.S. contractors are subject to Philippine immigration
States.255 (Emphases Supplied) laws.261The latter must comply with our visa and passport regulations 262 and prove that they are not subject to
A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with the entry exclusion under any provision of Philippine immigration laws.263 The President may also deny them 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 pursuant to his absolute and unqualified power to prohibit or prevent the admission of aliens whose presence in
right to access and use" the Agreed Locations, their wordings indicate the presumption that these groups have the country would be inimical to public interest.264
already been allowed entry into Philippine territory, for which, unlike the VFA, EDCA has no specific provision. In the same vein, the President may exercise the plenary power to expel or deport U.S. contractors 265 as may be
Instead, Article II of the latter simply alludes to the VFA in describing U.S. personnel, a term defined under Article necessitated by national security, public safety, public health, public morals, and national interest. 266 They may
I of the treaty as follows: also be deported if they are found to be illegal or undesirable aliens pursuant to the Philippine Immigration
As used in this Agreement, "United States personnel" means United States military and civilian personnel Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of the VFA requires a request for removal from the
temporarily in the Philippines in connection with activities approved by the Philippine Government. Within this Philippine government before a member of the U.S. personnel may be "dispos[ed] xx x outside of the
definition: Philippines."
1. The term "military personnel" refers to military members of the United States Army, c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in furtherance of the
Navy, Marine Corps, Air Force, and Coast Guard. MDT and the VFA
2. The term "civilian personnel" refers to individuals who are neither nationals of nor We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the activities in
ordinarily resident in the Philippines and who are employed by the United States armed which U.S. military and civilian personnel may engage:
forces or who are accompanying the United States armed forces, such as employees of MUTUAL DEFENSE TREATY
the American Red Cross and the United Services Organization.258 Article II
Article II of EDCA must then be read with Article III of the VFA, which provides for the entry accommodations to In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly byself-help
be accorded to U.S. military and civilian personnel: and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.
1. The Government of the Philippines shall facilitate the admission of United States personnel and Article III
their departure from the Philippines in connection with activities covered by this agreement. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time
2. United States military personnel shall be exempt from passport and visa regulations upon regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial
enteringand departing the Philippines. integrity, political independence or security of either of the Parties is threatened by external armed attack in the
3. The following documents only, which shall be required in respect of United States military personnel Pacific.
who enter the Philippines; xx xx. VISITING FORCES AGREEMENT
4. United States civilian personnel shall be exempt from visa requirements but shall present, upon Preamble
demand, valid passports upon entry and departure of the Philippines. (Emphases Supplied) xxx
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian personnel to be Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
"temporarily in the Philippines," so long as their presence is "in connection with activities approved by the Noting that from time to time elements of the United States armed forces may visit the Republic of the
Philippine Government." The Philippines, through Article III, even guarantees that it shall facilitate the admission Philippines;
of U.S. personnel into the country and grant exemptions from passport and visa regulations. The VFA does not Considering that cooperation between the United States and the Republic of the Philippines promotes their
even limit their temporary presence to specific locations. common security interests;
Based on the above provisions, the admission and presence of U.S. military and civilian personnel in xxx
Philippine territory are already allowed under the VFA, the treaty supposedly being implemented by Article I - Definitions
EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to identify the locations in As used in this Agreement, "United States personnel" means United States military and civilian personnel
which U.S. personnel may perform allowed activities pursuant to the VFA. As the implementing agreement, it temporarily in the Philippines in connection with activities approved by the Philippine Government. Within this
regulates and limits the presence of U.S. personnel in the country. definition: xx x
b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory; their entry Article II - Respect for Law
must be sourced from extraneous Philippine statutes and regulations for the admission of alien employees or It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to
business persons. abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political
Of the three aforementioned classes of individuals who will be conducting certain activities within the Agreed activity in the Philippines. The Government of the United States shall take all measures within its authority to
Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This does not mean, ensure that this is done.
though, that the recognition of their presence under EDCA is ipso facto an amendment of the treaty, and that Article VII - Importation and Exportation
there must be Senate concurrence before they are allowed to enter the country. 1. United States Government equipment, materials, supplies, and other property imported into or
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles III and IV, acquired in the Philippines by or on behalf of the United States armed forces in connection with activities to
in fact, merely grant them the right of access to, and the authority to conduct certain activities within the Agreed which this agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title to
Locations. Since Article II(3) of EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they such property shall remain with the United States, which may remove such property from the Philippines at any
shall not be granted the same entry accommodations and privileges as those enjoyed by U.S. military and time, free from export duties, taxes, and other similar charges. x x x.
civilian personnel under the VFA. 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 Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume
the Government of the Philippines in accordance with procedures stipulated in implementing arrangements. that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls under the
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of
the Government of the Philippines. The movement of vessels shall be in accordance with international the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities - as opposed to
custom and practice governing such vessels, and such agreed implementing arrangements as combat itself- such as the one subject of the instant petition, are indeed authorized. (Emphases Supplied)
necessary. x x x (Emphases Supplied) The joint report of the Senate committees on foreign relations and on national defense and security further
Manifest in these provisions is the abundance of references to the creation of further "implementing explains the wide range and variety of activities contemplated in the VFA, and how these activities shall be
arrangements" including the identification of "activities [to be] approved by the Philippine Government." To identified:277
determine the parameters of these implementing arrangements and activities, we referred to the content, These joint exercises envisioned in the VFA are not limited to combat-related activities; they have a wide
purpose, and framework of the MDT and the VFA. range and variety. They include exercises that will reinforce the AFP's ability to acquire new techniques of
By its very language, the MDT contemplates a situation in which both countries shall engage in joint activities, so patrol and surveillance to protect the country's maritime resources; sea-search and rescue operations to
that they can maintain and develop their defense capabilities. The wording itself evidently invites a reasonable assist ships in distress; and disaster-relief operations to aid the civilian victims of natural calamities, such as
construction that the joint activities shall involve joint military trainings, maneuvers, and exercises. Both the earthquakes, typhoons and tidal waves.
interpretation269 and the subsequent practice270 of the parties show that the MDT independently allows joint xxxx
military exercises in the country. Lim v. Executive Secretary271 and Nicolas v. Romulo272 recognized Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and equipment
that Balikatan exercises, which are activities that seek to enhance and develop the strategic and technological repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual Defense Board. It is at
capabilities of the parties to resist an armed attack, "fall squarely under the provisions of the RP-US the level of the Mutual Defense Board-which is headed jointly by the Chief of Staff of the AFP and the
MDT."273 In Lim, the Court especially noted that the Philippines and the U.S. continued to conduct joint military Commander in Chief of the U.S. Pacific Command-that the VFA exercises are planned. Final approval of any
exercises even after the expiration of the MBA and even before the conclusion of the VFA. 274 These activities activity involving U.S. forces is, however, invariably given by the Philippine Government.
presumably related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded xxxx
to U.S. military and civilian personnel while conducting activities in the Philippines in relation to the MDT.275 Siazon clarified that it is not the VFA by itself that determines what activities will be conductedbetween the
Further, it can be logically inferred from Article V of the MDT that these joint activities may be conducted on armed forces of the U.S. and the Philippines. The VFA regulates and provides the legal framework for the
Philippine or on U.S. soil. The article expressly provides that the term armed attack includes "an armed attack on presence, conduct and legal status of U.S. personnel while they are in the country for visits, joint exercises
the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the and other related activities. (Emphases Supplied)
Pacific or on its armed forces, public vessels or aircraft in the Pacific." Surely, in maintaining and developing What can be gleaned from the provisions of the VFA, the joint report of the Senate committees on foreign
our defense capabilities, an assessment or training will need to be performed, separately and jointly by self-help relations and on national defense and security, and the ruling of this Court in Lim is that the "activities"
and mutual aid, in the territories of the contracting parties. It is reasonable to conclude that the assessment of referred to in the treaty are meant to be specified and identified infurther agreements. EDCA is one such
defense capabilities would entail understanding the terrain, wind flow patterns, and other environmental factors agreement.
unique to the Philippines. EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel referred to
It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable areas would in the VFA. EDCA allows U.S. military and civilian personnel to perform "activities approved by the Philippines, as
be part of the training of the parties to maintain and develop their capacity to resist an actual armed attack and to those terms are defined in the VFA"278 and clarifies that these activities include those conducted within the
test and validate the defense plan of the Philippines. It is likewise reasonable to imagine that part of the training Agreed Locations:
would involve an analysis of the effect of the weapons that may be used and how to be prepared for the 1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster
eventuality. This Court recognizes that all of this may require training in the area where an armed attack might be relief activities; and such other activities as may be agreed upon by the Parties279
directed at the Philippine territory. 2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
The provisions of the MDT must then be read in conjunction with those of the VFA. maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications;
Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines is "in prepositioning of equipment, supplies, and materiel; deployment of forces and materiel; and such other activities
connection with activities approved by the Philippine Government." While the treaty does not expressly as the Parties may agree280
enumerate or detail the nature of activities of U.S. troops in the country, its Preamble makes explicit references to 3. Exercise of operational control over the Agreed Locations for construction activities and other types of activity,
the reaffirmation of the obligations of both countries under the MDT. These obligations include the strengthening including alterations and improvements thereof281
of international and regional security in the Pacific area and the promotion of common security interests. 4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their operational
The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the Philippine control or defense, including the adoption of apfropriate measures to protect U.S. forces and contractors282
Government" under Article I of the VFA was intended to be ambiguous in order to afford the parties flexibility to 5. Use of water, electricity, and other public utilities283
adjust the details of the purpose of the visit of U.S. personnel. 276 In ruling that the Terms of Reference for 6. Operation of their own telecommunication systems, including the utilization of such means and services as are
the Balikatan Exercises in 2002 fell within the context of the treaty, this Court explained: required to ensure the full ability to operate telecommunication systems, as well as the use of the necessary
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word radio spectrum allocated for this purpose284
"activities" arose from accident. In our view, it was deliberately made that way to give both parties a According to Article I of EDCA, one of the purposes of these activities is to maintain and develop, jointly and by
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for mutual aid, the individual and collective capacities of both countries to resist an armed attack. It further states
purposes other than military. As conceived, the joint exercises may include training on new techniques of that the activities are in furtherance of the MDT and within the context of the VFA.
patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist We note that these planned activities are very similar to those under the Terms of Reference 285 mentioned
vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform the following: (a) participate in
and humanitarian missions, and the like. 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- Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA does not
defense. We quote the relevant portion of the Terms and Conditions as follows:286 include a maximum time limit with respect to the presence of U.S. personnel in the country. We construe this lack
I. POLICY LEVEL of specificity as a deliberate effort on the part of the Philippine and the U.S. governments to leave out this aspect
xxxx and reserve it for the "adjustment in detail" stage of the implementation of the treaty. We interpret the
No permanent US basing and support facilities shall be established. Temporary structures such as those subsequent, unconditional concurrence of the Senate in the entire text of the VFA as an implicit grant to the
for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during President of a margin of appreciation in determining the duration of the "temporary" presence of U.S. personnel
the Exercise. in the country.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and nature.289However, this argument has not taken root by virtue of a simple glance at its provisions on the effectivity
US Unit Commanders will retain command over their respective forces under the overall authority of the period. EDCA does not grant permanent bases, but rather temporary rotational access to facilities for efficiency.
Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the As Professor Aileen S.P. Baviera notes:
FTX. The new EDCA would grant American troops, ships and planes rotational access to facilities of the Armed Forces
The exercise shall be conducted and completed within a period of not more than six months, with the projected of the Philippines – but not permanent bases which are prohibited under the Philippine Constitution - with the
participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co- result of reducing response time should an external threat from a common adversary crystallize.290
Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. EDCA is far from being permanent in nature compared to the practice of states as shown in other defense
The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense agreement provides the
efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training following:
exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for This Agreement is concluded for an indefinite period and shall enter into force in accordance with the internal
support of the Exercise. laws of each Party x x x. (emphasis supplied)
xx xx. Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
US exercise participants shall not engage in combat, without prejudice to their right of self-defense. This Agreement has been concluded for an indefinite period of time. It may be terminated by written
These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations notification by either Party and in that event it terminates 2 years after the receipt of the notification. (emphasis
between the US Government and the Republic of the Philippines. supplied)
II. EXERCISE LEVEL Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
1. TRAINING 8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall become
a. The Exercise shall involve the conduct of mutual military assisting, advising and effective on the date of the last signature affixed below and shall remain in force until terminated by the
trainingof RP and US Forces with the primary objective of enhancing the operational Parties, provided that it may be terminated by either Party upon 180 days written notice of its intention to do so
capabilities of both forces to combat terrorism. to the other Party. (emphasis supplied)
b. At no time shall US Forces operate independently within RP territory. On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer initial term:
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic 3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force, but may be
regulations. terminated by either Party at any time upon one year's written notice to the other Party through diplomatic
2. ADMINISTRATION & LOGISTICS channels. (emphasis supplied)
xxxx The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of that is
a. RP and US participating forces may share, in accordance with their respective laws and regulations, in the provided in the latter agreement. This means that EDCA merely follows the practice of other states in not
use of their resources, equipment and other assets. They will use their respective logistics channels . x x specifying a non-extendible maximum term. This practice, however, does not automatically grant a badge of
x. (Emphases Supplied) permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that its effectivity is for an initial term
After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we find that of 10 years, which is far shorter than the terms of effectivity between the U.S. and other states. It is simply
EDCA has remained within the parameters set in these two treaties. Just like the Terms of Reference mentioned illogical to conclude that the initial, extendible term of 10 years somehow gives EDCA provisions a permanent
in Lim, mere adjustments in detail to implement the MDT and the VFA can be in the form of executive character.
agreements. The reasoning behind this interpretation is rooted in the constitutional role of the President who, as Commander-
Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with the in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-bound to defend our
temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of EDCA has an initial national sovereignty and territorial integrity;291 who, as chief architect of our foreign relations, is the head
term of 10 years, a term automatically renewed unless the Philippines or the U.S. terminates the agreement. policymaker tasked to assess, ensure, and protect our national security and interests;292 who holds the most
According to petitioners, such length of time already has a badge of permanency. comprehensive and most confidential information about foreign countries293 that may affect how we conduct our
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and Dissenting external affairs; and who has unrestricted access to highly classified military intelligence data 294 that may
Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas EDCA allows an unlimited threaten the life of the nation. Thus, if after a geopolitical prognosis of situations affecting the country, a belief is
period for U.S. forces to stay in the Philippines.288 engendered that a much longer period of military training is needed, the President must be given ample
However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of effectivity. discretion to adopt necessary measures including the flexibility to set an extended timetable.
Although this term is automatically renewed, the process for terminating the agreement is unilateral and the right Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the President may
to do so automatically accrues at the end of the 10 year period. Clearly, this method does not create a permanent not always be able to candidly and openly discuss the complete situation being faced by the nation. The Chief
obligation. 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 While we recognize the concerns of petitioners, they do not give the Court enough justification to strike down
interests. If the Senate decides that the President is in the best position to define in operational terms the EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take judicial notice of claims
meaning of temporary in relation to the visits, considered individually or in their totality, the Court must respect aired in news reports, "not because of any issue as to their truth, accuracy, or impartiality, but for the simple
that policy decision. If the Senate feels that there is no need to set a time limit to these visits, neither should we. reason that facts must be established in accordance with the rules of evidence." 308 What is more, we cannot
Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary" nature of the move one step ahead and speculate that the alleged illegal activities of these contractors in other countries
visits of U.S. personnel does not suggest that the duration to which the President may agree is unlimited. would take place in the Philippines with certainty. As can be seen from the above discussion, making sure that
Instead, the boundaries of the meaning of the term temporary in Article I of the treaty must be measured U.S. contractors comply with Philippine laws is a function of law enforcement. EDCA does not stand in the way of
depending on the purpose of each visit or activity. 295 That purpose must be analyzed on a case-by-case basis law enforcement.
depending on the factual circumstances surrounding the conclusion of the implementing agreement. While the Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the VFA. As
validity of the President's actions will be judged under less stringent standards, the power of this Court to visiting aliens, their entry, presence, and activities are subject to all laws and treaties applicable within the
determine whether there was grave abuse of discretion remains unimpaired. Philippine territory. They may be refused entry or expelled from the country if they engage in illegal or
d. Authorized activities performed by US. contractors within Philippine territory - who were legitimately permitted undesirable activities. There is nothing that prevents them from being detained in the country or being subject to
to enter the country independent of EDCA - are subject to relevant Philippine statutes and regulations and must the jurisdiction of our courts. Our penal laws,309 labor laws,310 and immigrations laws311 apply to them and
be consistent with the MDT and the VFA therefore limit their activities here. Until and unless there is another law or treaty that specifically deals with their
Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private security entry and activities, their presence in the country is subject to unqualified Philippine jurisdiction.
contractors in other countries. They claim that these contractors - one of which has already been operating in EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in the
Mindanao since 2004 - have been implicated in incidents or scandals in other parts of the globe involving Philippines
rendition, torture and other human rights violations. They also assert that these contractors employ paramilitary Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through the
forces in other countries where they are operating. "euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article II(4) of EDCA,
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following activities: they point out that these locations are actually military bases, as the definition refers to facilities and areas to
1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary which U.S. military forces have access for a variety of purposes. Petitioners claim that there are several badges
maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; of exclusivity in the use of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a "return" of
communications; prepositioning of equipment, supplies, and materiel; deployment of forces and these areas once they are no longer needed by U.S. forces, indicating that there would be some transfer of
materiel; and such other activities as the Parties may agree297 use. Second, Article IV(4) ofEDCA talks about American forces' unimpeded access to the Agreed Locations for
2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery, all matters relating to the prepositioning and storage of U.S. military equipment, supplies, and materiel. Third,
management, inspection, use, maintenance, and removal of such equipment, supplies and materiel298 Article VII of EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications
3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, system.
regulations, and policies299 a. Preliminary point on badges of exclusivity
EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This means that As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called "badges
certain privileges denied to aliens are likewise denied to foreign military contractors. Relevantly, providing of exclusivity," despite the presence of contrary provisions within the text of the agreement itself.
security300and carrying, owning, and possessing firearms301 are illegal for foreign civilians. First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is within the
The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign Investment context of a lengthy provision. The provision as a whole reads as follows:
Negative list,302 the Executive Department has already identified corporations that have equity restrictions in The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including non-
Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that cannot have any foreign equity relocatable structures and assemblies constructed, modified, or improved by the United States, once no longer
by virtue of Section 4 of Republic Act No. 5487; 303 and No. 15, which regulates contracts for the construction of required by United States forces for activities under this Agreement. The Parties or the Designated Authorities
defense-related structures based on Commonwealth Act No. 541. shall consult regarding the terms of return of any Agreed Locations, including possible compensation for
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate and civil improvements or construction.
requirements imposed by the law, depending on the entity's corporate structure and the nature of its business. The context of use is "required by United States forces for activities under this Agreement." Therefore, the return
That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S. contractors has of an Agreed Location would be within the parameters of an activity that the Mutual Defense Board (MDB) and
been clear even to some of the present members of the Senate. the Security Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to its return of the
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the waters off Agreed Location would be based on the authority given to it by a joint body co-chaired by the "AFP Chief of Staff
Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on Environment and and Commander, U.S. PACOM with representatives from the Philippines' Department of National Defense and
Natural Resources chairperson claimed environmental and procedural violations by the contractor.305 The U.S. Department of Foreign Affairs sitting as members."313 The terms shall be negotiated by both the Philippines and
Navy investigated the contractor and promised stricter guidelines to be imposed upon its contractors.306 The the U.S., or through their Designated Authorities. This provision, seen as a whole, contradicts petitioners'
statement attributed to Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet - that U.S. interpretation of the return as a "badge of exclusivity." In fact, it shows the cooperation and partnership aspect of
Navy contractors are bound by Philippine laws - is of particular relevance. The statement acknowledges not just EDCA in full bloom.
the presence of the contractors, but also the U.S. position that these contractors are bound by the local laws of Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article IV(4) states
their host state. This stance was echoed by other U.S. Navy representatives.307 that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations for all matters relating
This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the purpose of to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management,
fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all, even to the U.S. inspection, use, maintenance, and removal of such equipment, supplies and materiel."
As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their activities At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in these
must be consistent with Philippine laws and regulations and pursuant to the MDT and the VFA. 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
1947 MBA/ 1946 Treaty of General Relations EDCA
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 1947 MBA, Art. I(1): EDCA, preamble:
given proper notification to the AFP.317 The Government of the Republic of Affirming that the Parties share an understanding for the
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership, use, and the Philippines (hereinafter referred to as the United States not to establish a permanent military
control of the U.S. over its own equipment, supplies, and materiel and must have first been allowed by the joint Philippines) grants to the Government of the United presence or base in the territory of the Philippines;
mechanisms in play between the two states since the time of the MDT and the VFA. It is not the use of the States of America (hereinafter referred to as the United xxxx
Agreed Locations that is exclusive per se; it is mere access to items in order to exercise the rights of ownership States) the right to retain the use of the bases in the Recognizing that all United States access to and use
granted by virtue of the Philippine Civil Code.318 Philippines listed in Annex A attached hereto. of facilities and areas will be at the invitation of the
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own 1947 MBA, Art. XVII(2): Philippines and with full respect for the Philippine
telecommunications system, it will be met and answered in part D, infra. All buildings and structures which are erected by Constitution and Philippine laws;
Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one correspondence the United States in the bases shall be the property xxxx
with the provisions of the 1947 MBA. They assert that both agreements (a) allow similar activities within the area; of the United States and may be removed by EDCA, Art. II(4):
(b) provide for the same "species of ownership" over facilities; and (c) grant operational control over the entire it before the expiration of this Agreement or the earlier "Agreed Locations" means facilities and areas that
area. Finally, they argue320 that EDCA is in fact an implementation of the new defense policy of the U.S. relinquishment of the base on which the structures are are provided by the Government of the
According to them, this policy was not what was originally intended either by the MDT or by the VFA. situated. There shall be no obligation on the part of the Philippines through the AFP and that United States
On these points, the Court is not persuaded. Philippines or of the United States to rebuild or repair forces, United States contractors, and others as
The similar activities cited by petitioners 321 simply show that under the MBA, the U.S. had the right to construct, any destruction or damage inflicted from any cause mutually agreed, shall have the right to access and use
operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel provisions of EDCA whatsoever on any of the said buildings or structures pursuant to this Agreement. Such Agreed Locations may
allow only operational control over the Agreed Locations specifically for construction activities. They do not allow owned or used by the United States in the bases. x x x be listed in an annex to be appended to this Agreement,
the overarching power to operate, maintain, utilize, occupy, garrison, and control a base with full discretion. x. and may be further described in implementing
EDCA in fact limits the rights of the U.S. in respect of every activity, including construction, by giving the MDB 1946 Treaty of Gen. Relations, Art. I: arrangements.
and the SEB the power to determine the details of all activities such as, but not limited to, operation, The United States of America agrees to withdraw and EDCA, Art. V:
maintenance, utility, occupancy, garrisoning, and control.322 surrender, and does hereby withdraw and surrender, all 1. The Philippines shall retain ownership of and
The "species of ownership" on the other hand, is distinguished by the nature of the property. For immovable rights of possession, supervision, jurisdiction, title to Agreed Locations.
property constructed or developed by the U.S., EDCA expresses that ownership will automatically be vested to control or sovereignty existing and exercised by the xxxx
the Philippines.323 On the other hand, for movable properties brought into the Philippines by the U.S., EDCA United States of America in and over the territory and 4. All buildings, non-relocatable structures, and
provides that ownership is retained by the latter. In contrast, the MBA dictates that the U.S. retains ownership the people of the Philippine Islands, except the use assemblies affixed to the land in the Agreed
over immovable and movable properties. of such bases, necessary appurtenances to such Locations, including ones altered or improved by
To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the Philippines. bases, and the rights incident thereto, as the United United States forces, remain the property of the
The Civil Code's provisions on ownership, as applied, grant the owner of a movable property full rights over that States of America, by agreement with the Republic of Philippines.Permanent buildings constructed by United
property, even if located in another person's property.324 the Philippines may deem necessary to retain for the States forces become the property of the Philippines,
The parallelism, however, ends when the situation involves facilities that can be considered immovable. Under mutual protection of the Republic of the Philippines and once constructed, but shall be used by United States
the MBA, the U.S. retains ownership if it paid for the facility. 325 Under EDCA, an immovable is owned by the of the United States of America. x x x. forces until no longer required by United States forces.
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 Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when
before the constitutional restriction is violated. Thus, petitioners' points on operational control will be given more it came to deciding whether to expand or to increase the number of bases, as the Philippines may be
attention in the discussion below. The arguments on policy are, however, outside the scope of judicial review and
will not be discussed compelled to negotiate with the U.S. the moment the latter requested an expansion of the existing
Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that would allay bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the
suspicion that EDCA is but a disguised version of the MBA. Philippines.
b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to do under the
1947 MBA 1947 MBA/ 1946 Treaty of General Relations EDCA
The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under EDCA for a
number of important reasons. 1947 MBA, Art.I(3): EDCA, preamble:
The Philippines agree to enter into Recognizing that all United States access to and use of
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory negotiations with the United States at the latter's facilities and areas will be at the invitation of the
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over any request, to permit the United States to expand such Philippines and with full respect for the Philippine
part of the Philippines in which its forces or equipment may be found. Below is a comparative table bases, to exchange such bases for other bases, to Constitution and Philippine laws;
acquire additional bases, or relinquish rights to xxxx
between the old treaty and EDCA: bases, as any of such exigencies may be required by EDCA. Art. II(4):
military necessity. "Agreed Locations" means facilities and areas that are necessary for the establishment, use, behalf of United States forces should be consistent with the
1946 Treaty of Gen. Relations, Art. I: are provided by the Government of the operation and defense thereof or requirements and standards of both Parties.
The United States of America agrees to Philippines through the AFP and that United States appropriate for the control thereof and all
withdraw and surrender, and does hereby withdraw forces, United States contractors, and others as mutually the rights, power and authority within the
and surrender, all rights of possession, agreed, shall have the right to access and use pursuant to limits of territorial waters and air space
supervision, jurisdiction, control or this Agreement. Such Agreed Locations may be listed in adjacent to, or in the vicinity of, the bases
sovereignty existing and exercised by the United an annex to be appended to this Agreement, and may be which are necessary to provide access to
States of America in and over the territory and the further described in implementing arrangements. them, or appropriate for their control.
people of the Philippine Islands, except the use
of such bases, necessary appurtenances to such Fifth, theU.S. under the bases agreement was given the authority to use Philippine territory for
bases, and the rights incident thereto, as the United additional staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen
States of America, by agreement with the below:
Republic of the Philippines may deem necessary
to retain for the mutual protection of the Republic of 1947 MBA EDCA
the Philippines and of the United States of America. x
x x. 1947 MBA, Art. VI: EDCA, Art. III(1):
The United States shall, subject to previous With consideration of the views of the Parties,
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations. On agreement with the Philippines, have the Philippines hereby authorizes and agrees that United States
the other hand, given that the U.S. had complete control over its military bases under the 1947 MBA, the right to use land and coastal sea forces, United States contractors, and vehicles, vessels, and
areas of appropriate size and location for aircraft operated by or for United States forces may conduct the
the treaty did not provide for any express recognition of the right of access of Philippine authorities. periodic maneuvers, for additional staging following activities with respect to Agreed Locations: training;
Without that provision and in light of the retention of U.S. sovereignty over the old military bases, areas, bombing and gunnery ranges, and transit; support and related activities; refueling of aircraft; bunkering
the U.S. could effectively prevent Philippine authorities from entering those bases. for such intermediate airfields as may be of vessels; temporary maintenance of vehicles, vessels, and
required for safe and efficient air operations. aircraft; temporary accommodation of personnel; communications;
1947 MBA EDCA Operations in such areas shall be carried on prepositioning of equipment, supplies, and materiel; deploying
with due regard and safeguards for the forces and materiel; and such other activities as the Parties may
No equivalent EDCA, Art. III(5): public safety. agree.
provision. The Philippine Designated Authority and its authorized representative shall have access to 1947 MBA, Art.I(2):
the entire area of the Agreed Locations. Such access shall be provided promptly consistent The Philippines agrees to permit the United
with operational safety and security requirements in accordance with agreed procedures States, upon notice to the Philippines,
developed by the Parties. to use such of those bases listed in Annex
Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the B as the United States determines to be
required by military necessity.
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 Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
in determining the extent of its control was military necessity. On the other hand, there is no such movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not
grant of power or authority under EDCA. It merely allows the U.S. to exercise operational control have any right, power, or authority to do so under EDCA.
over the construction of Philippine-owned structures and facilities: 1947 MBA EDCA
1947 MBA EDCA 1947 MBA, Art. 111(2)(c) No
Such rights, power and authority shall include, inter alia, the right, power and authority: x x x equivalent
1947 MBA, Art.I(2): EDCA, Art. III(4):
x to control (including the right to prohibit) in so far as may be required for the efficient operation provision.
The Philippines agrees to permit the United The Philippines hereby grants to the United States, through
and safety of the bases, and within the limits of military necessity, anchorages, moorings,
States, upon notice to the Philippines, to use bilateral security mechanisms, such as the MDB and
landings, takeoffs, movements and operation of ships and water-borne craft, aircraft and
such of those bases listed in Annex B as SEB, operational control of Agreed Locations for construction
other vehicles on water, in the air or on land comprising
the United States determines to be activities and authority to undertake such activities on, and
required by military necessity. make alterations and improvements to, Agreed Locations. United Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including
1947 MBA, Art. III(1): States forces shall consult on issues regarding such
It is mutually agreed that the United construction, alterations, and improvements based on the
roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and
Statesshall have the rights, power and Parties' shared intent that the technical requirements and deepen the harbors, channels, entrances, and anchorages; and to construct or maintain necessary
authority within the bases which construction standards of any such projects undertaken by or on roads and bridges that would afford it access to its military bases.
1947 MBA EDCA Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real
property belonging to any private person. The old military bases agreement gave this right to the
1947 MBA, Art. III(2)(b): EDCA, Art. III(2):
Such rights, power and authority shall include, inter When requested, the Designated Authority of the Philippines
U.S. as seen below:
alia, the right, power and authority: x x x x to shall assist in facilitating transit or temporary access by 1947 MBA EDCA
improve and deepen the harbors, channels, United States forces to public land and facilities (including
entrances and anchorages, and to construct or roads, ports, and airfields), including those owned or 1947 MBA, Art. XXII(l): No
maintain necessary roadsand bridges affording controlled by local governments, and to other land and Whenever it is necessary to acquire by equivalent
access to the bases. facilities (including roads, ports, and airfields). condemnation or expropriation proceedings real property belonging to any private provision.
persons, associations or corporations located in bases named in Annex A and Annex B in order to
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities, carry out the purposes of this Agreement, the Philippines will institute and prosecute such
services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, condemnation or expropriation proceedings in accordance with the laws of the Philippines. The
United States agrees to reimburse the Philippines for all the reasonable expenses, damages and
lakes, rivers, and streams in the Philippines in the same manner that Philippine military forces
costs therebv incurred, including the value of the property as determined by the Court. In addition,
enjoyed that right. No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces subject to the mutual agreement of the two Governments, the United States will reimburse the
temporary access to public land and facilities when requested: Philippines for the reasonable costs of transportation and removal of any occupants displaced or
ejected by reason of the condemnation or expropriation.
1947 MBA EDCA
Eleventh, EDCAdoes not allow the U.S. to unilaterally bring into the country non-Philippine nationals
1947 MBA, Art. VII: EDCA, Art. III(2):
It is mutually agreed that the United States may employ and When requested, the Designated Authority of the who are under its employ, together with their families, in connection with the construction,
use for United States military forces any and all public Philippines shall assist in facilitating transit or maintenance, or operation of the bases. EDCA strictly adheres to the limits under the VFA.
utilities, other services and facilities, airfields, ports, temporary access by United States forces to
1947 MBA EDCA
harbors, roads, highways, railroads, bridges, viaducts, canals, public land and facilities (including roads, ports,
lakes, rivers and streams in the Philippines under conditions and airfields), including those owned or controlled 1947 MBA, Art. XI(l): EDCA, Art. II:
no less favorable than those that may be applicablefrom by local governments, and to other land and It is mutually agreed that the United States shall have 1. "United States personnel" means United
time to time to the military forces of the Philippines. facilities (including roads, ports, and airfields). the right to bring into the Philippines members of the States military and civilian personneltemporarily in
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain, and United States military forces and the United States the territory of the Philippines in connection with
nationals employed by or under a contract with the activities approved by the Philippines, as those
employ any type of facility, weapon, substance, device, vessel or vehicle, or system unlike in the old
United States together with their families, and terms are defined in the VFA.
treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the authority to technical personnel of other nationalities (not being x xx x
undertake construction, alteration, or improvements on the Philippine-owned Agreed Locations. persons excluded by the laws of the Philippines) in 3. "United States contractors" means companies
connection with the construction, maintenance, or and firms, and their employees, under contract or
1947 MBA EDCA operation of the bases. The United States shall make subcontract to or on behalf of the United States
suitable arrangements so that such persons may be Department of Defense. United States contractors
1947 MBA, Art. III(2)(e): EDCA, Art. III(4):
readily identified and their status established when are not included as part of the definition of United
Such rights, power and authority shall include, inter The Philippines hereby grants to the United States,
necessary by the Philippine authorities. Such persons, States personnel in this Agreement, including
alia, the right, power and authority: x x x x through bilateral security mechanisms, such as the
other than members of the United States armed forces in within the context of the VFA.
to construct, install, maintain, and employ on any MDB and SEB, operational control of Agreed Locations
uniform, shall present their travel documents to the
base any type of facilities, weapons, substance, for construction activities and authority to undertake
appropriate Philippine authorities for visas, it being
device, vessel or vehicle on or under the ground, in such activities on, and make alterations and
understood that no objection will be made to their
the air or on or under the water that may be requisite or improvements to, Agreed Locations. United States
travel to the Philippines as non-immigrants.
appropriate, including meteorological systems, aerial forces shall consult on issues regarding such
and water navigation lights, radio and radar apparatus construction, alterations, and improvements based on Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any
and electronic devices, of any desired power, type of the Parties' shared intent that the technical requirements
emission and frequency. and construction standards of any such projects person within the Agreed Locations, unlike in the former military bases:
undertaken by or on behalf of United States forces 1947 MBA EDCA
should be consistent with the requirements and
standards of both Parties. 1947 MBA, Art. XIII(l)(a): No equivalent
The Philippines consents that the United provision.
States shall have the right to exercise jurisdiction over the following offenses: (a) Any
offense committed by any person within any base except where the offender and offended
 of the lands covered under the 194 7 Military Bases Agreement between the Philippines and the United States of
parties are both Philippine citizens (not members of the armed forces of the United States on
America, as amended.330
active duty) or the offense is against the security of the Philippines.
The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which specifically
Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is restricts, among others, foreign military facilities or bases. At the time of its crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of what exactly it was restricting. While the term "facilities and bases"
free of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, was left undefined, its point of reference was clearly those areas covered by the 1947 MBA as amended.
the PX store has become the cultural icon of U.S. military presence in the country. 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. The last direct military action of the
1947 MBA EDCA
U.S. in the region was the use of Subic base as the staging ground for Desert Shield and Desert Storm during
1947 MBA, Art. XVIII(l): No the Gulf War.331In 1991, the Philippine Senate rejected the successor treaty of the 1947 MBA that would have
It is mutually agreed that the United States equivalent allowed the continuation of U.S. bases in the Philippines.
shall have the right to establish on bases, free of all licenses; fees; sales, excise or other provision. Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
taxes, or imposts; Government agencies, including concessions, such as sales commissaries consideration the subsisting agreements between both parties, the rejection of the 1991 proposal, and a
and post exchanges; messes and social clubs, for the exclusive use of the United States concrete understanding of what was constitutionally restricted. This trend birthed the VFA which, as discussed,
military forces and authorized civilian personnel and their families. The merchandise or has already been upheld by this Court.
services sold or dispensed by such agencies shall be free of all taxes, duties and inspection by The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."
the Philippine authorities. Administrative measures shall be taken by the appropriate authorities By definition, Agreed Locations are
of the United States to prevent the resale of goods which are sold under the provisions of this facilities and areas that are provided by the Government of the Philippines through the AFP and that United
Article to persons not entitled to buy goods at such agencies and, generally, to prevent abuse of States forces, United States contractors, and others as mutually agreed, shall have the right to access and use
the privileges granted under this Article. There shall be cooperation between such authorities and pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement,
the Philippines to this end. and may be further described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership of and title to
In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the 1987 the Agreed Locations means that EDCA is "consistent with Article II of the VFA which recognizes Philippine
Constitution was adopted. sovereignty and jurisdiction over locations within Philippine territory.333
Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and "facilities" By this interpretation, respondent acknowledges that the contention of petitioners springs from an understanding
is required before EDCA can be deemed to have passed judicial scrutiny. that the Agreed Locations merely circumvent the constitutional restrictions. Framed differently, the bone of
c. The meaning of military facilities and bases contention is whether the Agreed Locations are, from a legal perspective, foreign military facilities or bases. This
An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital in legal framework triggers Section 25, Article XVIII, and makes Senate concurrence a sine qua non.
determining whether EDCA breached the constitutional restriction. Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to "conduct
Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under Presidential the following activities: "training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the decree as supported by temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel;
Article 281 of the Revised Penal Code, which itself prohibits the act of trespass. communications; prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means any military, other activities as the Parties may agree."
air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines." This creation of EDCA must then be tested against a proper interpretation of the Section 25 restriction.
Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986 d. Reasons for the constitutional requirements and legal standards for constitutionally compatible military bases
Constitutional Commission, listed the areas that he considered as military bases: and facilities
1,000 hectares Camp O'Donnel Section 25 does not define what is meant by a "foreign military facility or base." While it specifically alludes to
20,000 hectares Crow Valley Weapon's Range U.S. military facilities and bases that existed during the framing of the Constitution, the provision was clearly
55,000 hectares Clark Air Base meant to apply to those bases existing at the time and to any future facility or base. The basis for the restriction
150 hectares Wallace Air Station must first be deduced from the spirit of the law, in order to set a standard for the application of its text, given the
400 hectares John Hay Air Station particular historical events preceding the agreement.
15,000 hectares Subic Naval Base Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective wisdom, the
1,000 hectares San Miguel Naval Communication intent of Section 25. Their speeches are rich with history and wisdom and present a clear picture of what they
750 hectares Radio Transmitter in Capas, Tarlac considered in the crafting the provision.
900 hectares Radio Bigot Annex at Bamban, Tarlac329 SPEECH OF COMMISSIONER REGALADO334
The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of Policies: xxxx
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the sound and We have been regaled here by those who favor the adoption of the anti-bases provisions with what purports to
balanced conversion into alternative productive uses of the Clark and Subic military reservations and their be an objective presentation of the historical background of the military bases in the Philippines. Care appears,
extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter Station, San Miguel Naval however, to have been taken to underscore the inequity in their inception as well as their implementation, as
Communications Station and Capas Relay Station), to raise funds by the sale of portions of Metro Manila military to seriously reflect on the supposed objectivity of the report. Pronouncements of military and civilian officials
camps, and to apply said funds as provided herein for the development and conversion to productive civilian use 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 matter of the gravest concern for the safety and survival of this nation indeed deserves a place in our
sovereignty - whether in its legal or political sense is not clear - and the theory that any country with Constitution.
foreign bases in its territory cannot claim to be fully sovereign or completely independent. I was not xxxx
aware that the concepts of sovereignty and independence have now assumed the totality principle, such that a x x x Why should we bargain away our dignity and our self-respect as a nation and the future of generations to
willing assumption of some delimitations in the exercise of some aspects thereof would put that State in a lower come with thirty pieces of silver?339
bracket of nationhood. SPEECH OF COMMISSIONER BENNAGEN340
xxxx xxxx
We have been receiving a continuous influx of materials on the pros and cons on the advisability of having The underlying principle of military bases and nuclear weapons wherever they are found and whoever owns
military bases within our shores. Most of us who, only about three months ago, were just mulling the prospects of them is that those are for killing people or for terrorizing humanity. This objective by itself at any point in
these varying contentions are now expected, like armchair generals, to decide not only on the geopolitical history is morally repugnant. This alone is reason enough for us to constitutionalize the ban on foreign military
aspects and contingent implications of the military bases but also on their political, social, economic and cultural bases and on nuclear weapons.341
impact on our national life. We are asked to answer a plethora of questions, such as: 1) whether the bases are SPEECH OF COMMISSIONER BACANI342
magnets of nuclear attack or are deterrents to such attack; 2) whether an alliance or mutual defense treaty is a xxxx
derogation of our national sovereignty; 3) whether criticism of us by Russia, Vietnam and North Korea is x x x Hence, the remedy to prostitution does not seem to be primarily to remove the bases because even if
outweighed by the support for us of the ASEAN countries, the United States, South Korea, Taiwan, Australia and the bases are removed, the girls mired in poverty will look for their clientele elsewhere. The remedy to the
New Zealand; and 4) whether the social, moral and legal problems spawned by the military bases and their problem of prostitution lies primarily elsewhere - in an alert and concerned citizenry, a healthy economy and a
operations can be compensated by the economic benefits outlined in papers which have been furnished recently sound education in values.343
to all of us.335 SPEECH OF COMMISSIONER JAMIR344
xxxx xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of their One of the reasons advanced against the maintenance of foreign military bases here is that they impair
positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the proposed portions of our sovereignty. While I agree that our country's sovereignty should not be impaired, I also hold the
declaration as a "golden," "unique" and "last" opportunity for Filipinos to assert their sovereign view that there are times when it is necessary to do so according to the imperatives of national interest. There
rights. Unfortunately, I have never been enchanted by superlatives, much less for the applause of the moment or are precedents to this effect. Thus, during World War II, England leased its bases in the West Indies and in
the ovation of the hour. Nor do I look forward to any glorious summer after a winter of political discontent. Hence, Bermuda for 99 years to the United States for its use as naval and air bases. It was done in consideration of 50
if I may join Commissioner Laurel, I also invoke a caveat not only against the tyranny of labels but also the overaged destroyers which the United States gave to England for its use in the Battle of the Atlantic.
tyranny of slogans.336 A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as a naval
xxxx base in the Indian Ocean. About the same time, the United States obtained bases in Spain, Egypt and Israel. In
SPEECH OF COMMISSIONER SUAREZ337 doing so, these countries, in effect, contributed to the launching of a preventive defense posture against possible
MR. SUAREZ: Thank you, Madam President. trouble in the Middle East and in the Indian Ocean for their own protection.345
I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of foreign SPEECH OF COMMISSIONER TINGSON346
bases from the Philippines have been adequately treated by previous speakers. Let me, therefore, just xxxx
recapitulate the arguments adduced in favor of a foreign bases-free Philippines: In the case of the Philippines and the other Southeast Asian nations, the presence of American troops in the
1. That every nation should be free to shape its own destiny without outside interference; country is a projection of America's security interest. Enrile said that nonetheless, they also serve, although in an
2. That no lasting peace and no true sovereignty would ever be achieved so long as there are foreign incidental and secondary way, the security interest of the Republic of the Philippines and the region. Yes, of
military forces in our country; course, Mr. Enrile also echoes the sentiments of most of us in this Commission, namely: It is ideal for us as an
3. That the presence of foreign military bases deprives us of the very substance of national independent and sovereign nation to ultimately abrogate the RP-US military treaty and, at the right time,
sovereigntyand this is a constant source of national embarrassment and an insult to our national build our own air and naval might.347
dignity and selfrespect as a nation; xxxx
4. That these foreign military bases unnecessarily expose our country to devastating nuclear Allow me to say in summation that I am for the retention of American military bases in the Philippines
attacks; provided that such an extension from one period to another shall be concluded upon concurrence of the
5. That these foreign military bases create social problems and are designed to perpetuate the strangle- parties, and such extension shall be based on justice, the historical amity of the people of the
hold of United States interests in our national economy and development; Philippines and the United States and their common defense interest.348
6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our country of SPEECH OF COMMISSIONER ALONTO349
jurisdiction over civil and criminal offenses committed within our own national territory and against xxxx
Filipinos; Madam President, sometime ago after this Commission started with this task of framing a constitution, I read a
7. That the bases agreements are colonial impositions and dictations upon our helpless country; and statement of President Aquino to the effect that she is for the removal of the U.S. military bases in this country
8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and but that the removal of the U.S. military bases should not be done just to give way to other foreign bases. Today,
void ab initio, especially because they did not count the sovereign consent and will of the Filipino there are two world superpowers, both vying to control any and all countries which have importance to their
people.338 strategy for world domination. The Philippines is one such country.
xxxx Madam President, I submit that I am one of those ready to completely remove any vestiges of the days of
In the real sense, Madam President, if we in the Commission could accommodate the provisions I have cited, enslavement, but not prepared to erase them if to do so would merely leave a vacuum to be occupied by a far
what is our objection to include in our Constitution a matter as priceless as the nationalist values we cherish? A worse type.350
SPEECH OF COMMISSIONER GASCON351 Second, consent by this forum, this Constitutional Commission, to an exception in the application of a
xxxx provision in the Bill of Rights that we have just drafted regarding equal application of the laws of the land to all
Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in Indo-China, inhabitants, permanent or otherwise, within its territorial boundaries.
Central America, in South Africa - there has been escalation of war in some of these areas because of foreign Third, the continued exercise by the United States of extraterritoriality despite the condemnations of such
intervention which views these conflicts through the narrow prism of the East-West conflict. The United States practice by the world community of nations in the light of overwhelming international approval of eradicating all
bases have been used as springboards for intervention in some of these conflicts. We should not allow vestiges of colonialism.358
ourselves to be party to the warlike mentality of these foreign interventionists. We must always be on the xxxx
side of peace – this means that we should not always rely on military solution.352 Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be wielded to
xxxx force the United States government to concede to better terms and conditions concerning the military bases
x x x The United States bases, therefore, are springboards for intervention in our own internal affairs and in agreement, including the transfer of complete control to the Philippine government of
the affairs of other nations in this region. the U.S. facilities, while in the meantime we have to suffer all existing indignities and disrespect towards our
xxxx rights as a sovereign nation.
Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which should xxxx
logically be declared in black and white in our fundamental law of the land - the Constitution. Let us express our Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially a question
desire for national sovereignty so we may be able to achieve national self-determination. Let us express of sovereignty which does not require in-depth studies or analyses and which this forum has, as a constituent
our desire for neutrality so that we may be able to follow active nonaligned independent foreign policies. Let us assembly drafting a constitution, the expertise and capacity to decide on except that it lacks the political will that
express our desire for peace and a nuclear-free zone so we may be able to pursue a healthy and tranquil brought it to existence and now engages in an elaborate scheme of buck-passing.
existence, to have peace that is autonomous and not imposed. 353 xxxx
xxxx Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold and defend
SPEECH OF COMMISSIONER TADEO354 our national sovereignty. National sovereignty is what the military bases issue is all about. It is only the
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang kahulugan sovereign people exercising their national sovereignty who can design an independent course and take full
nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng control of their national destiny.359
sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. SPEECH OF COMMISSIONER P ADILLA360
military bases ay batong pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang xxxx
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan ng patuloy na Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on neutrality,
paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically and nuclear and bases-free country, some views stress sovereignty of the Republic and even invoke survival of
culturally. Para sa sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear the Filipino nation and people.361
weapon - ang kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang REBUTTAL OF COMMISSIONER NOLLEDO362
kahulugan ng U.S. military bases ay isang salot.355 xxxx
SPEECH OF COMMISSIONER QUESADA356 The anachronistic and ephemeral arguments against the provisions of the committee report to dismantle the
xxxx American bases after 1991 only show the urgent need to free our country from the entangling alliance with
The drift in the voting on issues related to freeing ourselves from the instruments of domination and any power bloc.363
subservience has clearly been defined these past weeks. xxxx
xxxx xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called RP-US Bases
So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's position to Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction as well as national dignity
enshrine in the Constitution a fundamental principle forbidding foreign military bases, troops or facilities in any and honor, that it goes against the UN policy of disarmament and that it constitutes unjust intervention in our
part of the Philippine territory as a clear and concrete manifestation of our inherent right to national self- internal affairs.364 (Emphases Supplied)
determination, independence and sovereignty. The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities, subject to
Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social cost of the provisions of Section 25. It is thus important to read its discussions carefully. From these discussions, we can
allowing foreign countries to maintain military bases in our country. Previous speakers have dwelt on this subject, deduce three legal standards that were articulated by the Constitutional Commission Members. These are
either to highlight its importance in relation to the other issues or to gloss over its significance and !llake this a characteristics of any agreement that the country, and by extension this Court, must ensure are observed. We
part of future negotiations.357 can thereby determine whether a military base or facility in the Philippines, which houses or is accessed by
xxxx foreign military troops, is foreign or remains a Philippine military base or facility. The legal standards we find
Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the response of the applicable are: independence from foreign control, sovereignty and applicable law, and national security and
Filipino people against this condition and other conditions that have already been clearly and emphatically territorial integrity.
discussed in past deliberations. The deletion, therefore, of Section 3 in the Constitution we are drafting will have i. First standard: independence from foreign control
the following implications: Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was aimed at
First, the failure of the Constitutional Commission to decisively respond to the continuing violation of our asserting Philippine independence from the U.S., as well as control over our country's territory and military.
territorial integrity via the military bases agreement which permits the retention of U.S. facilities within Under the Civil Code, there are several aspects of control exercised over property.
the Philippine soil over which our authorities have no exclusive jurisdiction contrary to the accepted Property is classified as private or public.365 It is public if "intended for public use, such as roads, canals, rivers,
definition of the exercise of sovereignty. 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 that under existing arrangements, the United States unilaterally determines not only the types and
service or for the development of the national wealth. "366 quantity of arms and equipments that our armed forces would have, but also the time when these items
Quite clearly, the Agreed Locations are contained within a property for public use, be it within a government are to be made available to us. It is clear, as he pointed out, that the composition, capability and
military camp or property that belongs to the Philippines.1avvphi1 schedule of development of the Armed Forces of the Philippines is under the effective control of the U.S.
Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code provides that government.376 (Emphases supplied)
"[t]he owner has the right to enjoy and dispose of a thing, without other limitations than those established by law." Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would assert
Moreover, the owner "has also a right of action against the holder and possessor of the thing in order to recover "independent" and "self-reliant" armed forces. This proposal was rejected by the committee, however. As
it." Commissioner De Castro asserted, the involvement of the Philippine military with the U.S. did not, by
Philippine civil law therefore accords very strong rights to the owner of property, even against those who hold the itself, rob the Philippines of its real independence. He made reference to the context of the times: that the
property. Possession, after all, merely raises a disputable presumption of ownership, which can be contested limited resources of the Philippines and the current insurgency at that time necessitated a strong military
through normal judicial processes.367 relationship with the U.S. He said that the U.S. would not in any way control the Philippine military despite this
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the Philippine relationship and the fact that the former would furnish military hardware or extend military assistance and training
govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access to and use of these to our military. Rather, he claimed that the proposal was in compliance with the treaties between the two states.
locations.369 MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12 September
The right of the owner of the property to allow access and use is consistent with the Civil Code, since the owner 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited resources, the only
may dispose of the property in whatever way deemed fit, subject to the limits of the law. So long as the right of thing we could do is manufacture small arms ammunition. We cannot blame the armed forces. We have to blame
ownership itself is not transferred, then whatever rights are transmitted by agreement does not completely divest the whole Republic of the Philippines for failure to provide the necessary funds to make the Philippine Armed
the owner of the rights over the property, but may only limit them in accordance with law. Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But as of this time, fighting an
Hence, even control over the property is something that an owner may transmit freely. This act does not translate insurgency case, a rebellion in our country - insurgency - and with very limited funds and very limited number of
into the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic Administrator of Davao, men, it will be quite impossible for the Philippines to appropriate the necessary funds therefor. However, if we
Inc. v. Land Registration Commission, we stated that the constitutional proscription on property ownership is not say that the U.S. government is furnishing us the military hardware, it is not control of our armed forces
violated despite the foreign national's control over the property.370 or of our government. It is in compliance with the Mutual Defense Treaty. It is under the military assistance
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under its program that it becomes the responsibility of the United States to furnish us the necessary hardware in
pertinent provisions, it is the Designated Authority of the Philippines that shall, when requested, assist in connection with the military bases agreement. Please be informed that there are three (3) treaties connected with
facilitating transit or access to public land and facilities. 371 The activities carried out within these locations are the military bases agreement; namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty and the
subject to agreement as authorized by the Philippine govemment.372 Granting the U.S. operational control over Military Assistance Program.
these locations is likewise subject to EDCA' s security mechanisms, which are bilateral procedures involving My dear Commissioner, when we enter into a treaty and we are furnished the military hardware pursuant
Philippine consent and cooperation.373 Finally, the Philippine Designated Authority or a duly designated to that treaty, it is not in control of our armed forces nor control of our government. True indeed, we have
representative is given access to the Agreed Locations.374 military officers trained in the U.S. armed forces school. This is part of our Military Assistance Program, but it
To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the Constitutional does not mean that the minds of our military officers are for the U.S. government, no. I am one of those who took
Commission. In fact, they seem to have been the product of deliberate negotiation from the point of view of the four courses in the United States schools, but I assure you, my mind is for the Filipino people. Also, while we are
Philippine government, which balanced constitutional restrictions on foreign military bases and facilities against sending military officers to train or to study in U.S. military schools, we are also sending our officers to study in
the security needs of the country. In the 1947 MBA, the U.S. forces had "the right, power and authority x x x to other military schools such as in Australia, England and in Paris. So, it does not mean that when we send military
construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases." 375 No officers to United States schools or to other military schools, we will be under the control of that country. We also
similarly explicit provision is present in EDCA. have foreign officers in our schools, we in the Command and General Staff College in Fort Bonifacio and in our
Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been raised by National Defense College, also in Fort Bonifacio.377 (Emphases supplied)
the present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities shall not be allowed This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not mean the
in the Philippines, except under a treaty duly concurred in by the Senate. Merely stating that the Philippines absence of foreign participation:
would retain ownership would do violence to the constitutional requirement if the Agreed Locations were simply Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not necessarily
to become a less obvious manifestation of the U.S. bases that were rejected in 1991. rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion"
When debates took place over the military provisions of the Constitution, the committee rejected a specific nor "mendicancy in the international community." As explained by Constitutional Commissioner Bernardo
provision proposed by Commissioner Sarmiento. The discussion illuminates and provides context to the 1986 Villegas, sponsor of this constitutional policy:
Constitutional Commission's vision of control and independence from the U.S., to wit: Economic self reliance is a primary objective of a developing country that is keenly aware of overdependence on
MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE SHALL external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it
ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE means avoiding mendicancy in the international community. Independence refers to the freedom from undue
PHILIPPINES." Allow me to briefly explain, Madam President. The Armed Forces of the Philippines is a vital foreign control of the national economy, especially in such strategic industries as in the development of natural
component of Philippine society depending upon its training, orientation and support. It will either be the people's resources and public utilities.378 (Emphases supplied)
protector or a staunch supporter of a usurper or tyrant, local and foreign interest. The Armed Forces of the The heart of the constitutional restriction on foreign military facilities and bases is therefore the assertion of
Philippines' past and recent experience shows it has never been independent and self-reliant. Facts, data independence from the U.S. and other foreign powers, as independence is exhibited by the degree of foreign
and statistics will show that it has been substantially dependent upon a foreign power. In March 1968, control exerted over these areas.1âwphi1 The essence of that independence is self-governance and self-
Congressman Barbero, himself a member of the Armed Forces of the Philippines, revealed top secret documents control.379 Independence itself is "[t]he state or condition of being free from dependence, subjection, or control.
showing what he described as U.S. dictation over the affairs of the Armed Forces of the Philippines. He showed "380
Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine facilities and designated commander over assigned and attached forces in the accomplishment of the mission x x
locations, such that the agreement effectively violates Section 25 of the 1987 Constitution.381 x."393 Operational control, on the other hand, refers to "[t]hose functions of command over assigned forces
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control and involving the composition of subordinate forces, the assignment of tasks, the designation of objectives, the
defense." The term "operational control" has led petitioners to regard U.S. control over the Agreed Locations as overall control of assigned resources, and the full authoritative direction necessary to accomplish the mission."394
unqualified and, therefore, total.382 Petitioners contend that the word "their" refers to the subject "Agreed Two things demonstrate the errors in petitioners' line of argument.
Locations." Firstly, the phrase "consistent with operational safety and security requirements in accordance with agreed
This argument misreads the text, which is quoted below: procedures developed by the Parties" does not add any qualification beyond that which is already imposed by
United States forces are authorized to exercise all rights and authorities within Agreed Locations that are existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA and the MDT. 395 Treaties are in
necessary for their operational control or defense, including taking appropriate measure to protect United States themselves contracts from which rights and obligations may be claimed or waived. 396 In this particular case, the
forces and United States contractors. The United States should coordinate such measures with appropriate Philippines has already agreed to abide by the security mechanisms that have long been in place between the
authorities of the Philippines. U.S. and the Philippines based on the implementation of their treaty relations.397
A basic textual construction would show that the word "their," as understood above, is a possessive pronoun for Secondly, the full document cited by petitioners contradicts the equation of "operational control" with "effective
the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot be used for a non-personal command and control," since it defines the terms quite differently, viz:398
subject such as "Agreed Locations." The simple grammatical conclusion is that "their" refers to the previous third- Command and control encompasses the exercise of authority, responsibility, and direction by a commander over
person plural noun, which is "United States forces." This conclusion is in line with the definition of operational assigned and attached forces to accomplish the mission. Command at all levels is the art of motivating and
control. directing people and organizations into action to accomplish missions. Control is inherent in command. To control
a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed Locations is to manage and direct forces and functions consistent with a commander's command authority. Control of
Operational control, as cited by both petitioner and respondents, is a military term referring to forces and functions helps commanders and staffs compute requirements, allocate means, and integrate efforts.
[t]he authority to perform those functions of command over subordinate forces involving organizing and Mission command is the preferred method of exercising C2. A complete discussion of tenets, organization, and
employing commands and forces, assigning tasks, designating objective, and giving authoritative direction processes for effective C2 is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint
necessary to accomplish the mission.383 Command and Control."
At times, though, operational control can mean something slightly different. In JUSMAG Philippines v. National Operational control is defined thus:399
Labor Relations Commission, the Memorandum of Agreement between the AFP and JUSMAG Philippines OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform those
defined the term as follows:384 functions of command over subordinate forces involving organizing and employing commands and forces,
The term "Operational Control" includes, but is not limited to, all personnel administrative actions, such as: hiring assigning tasks, designating objectives, and giving authoritative direction over all aspects of military operations
recommendations; firing recommendations; position classification; discipline; nomination and approval of and joint training necessary to accomplish the mission. It should be delegated to and exercised by the
incentive awards; and payroll computation. commanders of subordinate organizations; normally, this authority is exercised through subordinate JFCs,
Clearly, traditional standards define "operational control" as personnel control. Philippine law, for instance, deems Service, and/or functional component commanders. OPCON provides authority to organize and employ
operational control as one exercised by police officers and civilian authorities over their subordinates and is commands and forces as the commander considers necessary to accomplish assigned missions. It does not
distinct from the administrative control that they also exercise over police subordinates. 385 Similarly, a municipal include authoritative direction for logistics or matters of administration, discipline, internal organization, or unit
mayor exercises operational control over the police within the municipal government, 386 just as city mayor training. These elements of COCOM must be specifically delegated by the CCDR. OPCON does include the
possesses the same power over the police within the city government.387 authority to delineate functional responsibilities and operational areas of subordinate JFCs.
Thus, the legal concept of operational control involves authority over personnel in a commander-subordinate Operational control is therefore the delegable aspect of combatant command, while command and control is the
relationship and does not include control over the Agreed Locations in this particular case. Though not overall power and responsibility exercised by the commander with reference to a mission. Operational control is
necessarily stated in EDCA provisions, this interpretation is readily implied by the reference to the taking of a narrower power and must be given, while command and control is plenary and vested in a commander.
"appropriate measures to protect United States forces and United States contractors." Operational control does not include the planning, programming, budgeting, and execution process input; the
It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much the same assignment of subordinate commanders; the building of relationships with Department of Defense agencies; or
way that the Philippines exercises operational control over its own units. the directive authority for logistics, whereas these factors are included in the concept of command and control.400
For actual operations, EDCA is clear that any activity must be planned and pre-approved by the MDB- This distinction, found in the same document cited by petitioners, destroys the very foundation of the arguments
SEB.388 This provision evinces the partnership aspect of EDCA, such that both stakeholders have a say on how they have built: that EDCA is the same as the MBA.
its provisions should be put into effect. c. Limited operational control over the Agreed Locations only for construction activitites
b. Operational control vis-à-vis effective command and control As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational control within
Petitioners assert that beyond the concept of operational control over personnel, qualifying access to the Agreed the Agreed Locations during construction activities.401 This exercise of operational control is premised upon the
Locations by the Philippine Designated Authority with the phrase "consistent with operational safety and security approval by the MDB and the SEB of the construction activity through consultation and mutual agreement on the
requirements in accordance with agreed procedures developed by the Parties" leads to the conclusion that the requirements and standards of the construction, alteration, or improvement.402
U.S. exercises effective control over the Agreed Locations.389 They claim that if the Philippines exercises Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for construction
possession of and control over a given area, its representative should not have to be authorized by a special activities. The narrow and limited instance wherein the U.S. is given operational control within an Agreed
provision.390 Location cannot be equated with foreign military control, which is so abhorred by the Constitution.
For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command and The clear import of the provision is that in the absence of construction activities, operational control over the
control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and control from Agreed Location is vested in the Philippine authorities. This meaning is implicit in the specific grant of operational
operational control in U.S. parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint control only during construction activities. The principle of constitutional construction, "expressio unius est
Publication 1, "command and control (C2)" is defined as "the exercise of authority and direction by a properly 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 Petitioners quote from the website http://en.wikipedia.org to define what a military base is. 415 While the source is
Agreed Locations for construction activities, then it is quite logical to conclude that it is not exercised over other not authoritative, petitioners make the point that the Agreed Locations, by granting access and use to U.S. forces
activities. and contractors, are U.S. bases under a different name. 416 More important, they claim that the Agreed Locations
Limited control does not violate the Constitution. The fear of the commissioners was total control, to the point that invite instances of attack on the Philippines from enemies of the U.S.417
the foreign military forces might dictate the terms of their acts within the Philippines. 404 More important, limited We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics and policy.
control does not mean an abdication or derogation of Philippine sovereignty and legal jurisdiction over the At the very least, we can say that under international law, EDCA does not provide a legal basis for a justified
Agreed Locations. It is more akin to the extension of diplomatic courtesies and rights to diplomatic attack on the Philippines.
agents,405 which is a waiver of control on a limited scale and subject to the terms of the treaty. In the first place, international law disallows any attack on the Agreed Locations simply because of the presence
This point leads us to the second standard envisioned by the framers of the Constitution: that the Philippines of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members shall refrain in their
must retain sovereignty and jurisdiction over its territory. international relations from the threat or use of force against the territorial integrity or political independence of
ii. Second standard: Philippine sovereignty and applicable law any state, or in any other manner inconsistent with the Purposes of the United Nations." 418 Any unlawful attack on
EDCA states in its Preamble the "understanding for the United States not to establish a permanent military the Philippines breaches the treaty, and triggers Article 51 of the same charter, which guarantees the inherent
presence or base in the territory of the Philippines." Further on, it likewise states the recognition that "all United right of individual or collective self-defence.
States access to and use of facilities and areas will be at the invitation of the Philippines and with full respect for Moreover, even if the lawfulness of the attack were not in question, international humanitarian law standards
the Philippine Constitution and Philippine laws." prevent participants in an armed conflict from targeting non-participants. International humanitarian law, which is
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine sovereignty the branch of international law applicable to armed conflict, expressly limits allowable military conduct exhibited
and jurisdiction over the Agreed Locations. by forces of a participant in an armed conflict. 419 Under this legal regime, participants to an armed conflict are
Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by law of power and held to specific standards of conduct that require them to distinguish between combatants and non-
authority to apply the law.407 Article I of the 1987 Constitution states: combatants,420 as embodied by the Geneva Conventions and their Additional Protocols.421
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and Corollary to this point, Professor John Woodcliffe, professor of international law at the University of Leicester,
all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, noted that there is no legal consensus for what constitutes a base, as opposed to other terms such as "facilities"
and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine or "installation."422 In strategic literature, "base" is defined as an installation "over which the user State has a right
areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth to exclusive control in an extraterritorial sense."423 Since this definition would exclude most foreign military
and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied) installations, a more important distinction must be made.
From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces are allowed For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill a combat
to access and use.408 By withholding ownership of these areas and retaining unrestricted access to them, the role. He cites an example of the use of the territory of a state for training purposes, such as to obtain experience
government asserts sovereignty over its territory. That sovereignty exists so long as the Filipino people exist.409 in local geography and climactic conditions or to carry out joint exercises. 424 Another example given is an
Significantly, the Philippines retains primary responsibility for security with respect to the Agreed advanced communications technology installation for purposes of information gathering and
Locations.410Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has been communication.425 Unsurprisingly, he deems these non-combat uses as borderline situations that would be
transferred to the U.S. Even the previously discussed necessary measures for operational control and defense excluded from the functional understanding of military bases and installations.426
over U.S. forces must be coordinated with Philippine authorities.411 By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to be
Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws continue to protected, unless proven otherwise.427 Moreover, the principle of distinction requires combatants in an armed
be in force within the bases.412 The difference between then and now is that EDCA retains the primary jurisdiction conflict to distinguish between lawful targets428 and protected targets.429 In an actual armed conflict between the
of the Philippines over the security of the Agreed Locations, an important provision that gives it actual control U.S. and a third state, the Agreed Locations cannot be considered U.S. territory, since ownership of territory even
over those locations. Previously, it was the provost marshal of the U.S. who kept the peace and enforced in times of armed conflict does not change.430
Philippine law in the bases. In this instance, Philippine forces act as peace officers, in stark contrast to the 1947 Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate under
MBA provisions on jurisdiction.413 international humanitarian law if it is against a bona fide U.S. military base, facility, or installation that directly
iii. Third standard: must respect national security and territorial integrity contributes to the military effort of the U.S. Moreover, the third state's forces must take all measures to ensure
The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not impair or that they have complied with the principle of distinction (between combatants and non-combatants).
threaten the national security and territorial integrity of the Philippines. There is, then, ample legal protection for the Philippines under international law that would ensure its territorial
This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered the prior integrity and national security in the event an Agreed Location is subjected to attack. As EDCA stands, it does not
notion of permanent military bases obsolete. create the situation so feared by petitioners - one in which the Philippines, while not participating in an armed
Moreover, military bases established within the territory of another state is no longer viable because of the conflict, would be legitimately targeted by an enemy of the U.S.431
alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as In the second place, this is a policy question about the wisdom of allowing the presence of U.S. personnel within
huge sea vessels that can stay afloat in the sea even for months and years without returning to their home our territory and is therefore outside the scope of judicial review.
country. These military warships are actually used as substitutes for a land-home base not only of military aircraft Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within the military
but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military base of another sovereign state is nothing new on the international plane. In fact, this arrangement has been
headquarters.414 used as the framework for several defense cooperation agreements, such as in the following:
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- 1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
establishment of the Subic military base or the Clark Air Field as U.S. military reservations. In this context, 2. 2009 U.S.-Colombia Defense Cooperation Agreement433
therefore, this Court has interpreted the restrictions on foreign bases, troops, or facilities as three independent 3. 2009 U.S.-Poland Status of Forces Agreement434
restrictions. In accord with this interpretation, each restriction must have its own qualification. 4. 2014 U.S.-Australia Force Posture Agreement435
 5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436 Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national security. If
In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That access is anything, EDCA increases the likelihood that, in an event requiring a defensive response, the Philippines will be
without rental or similar costs to the U.S. 438 Further, U.S. forces are allowed to undertake construction activities prepared alongside the U.S. to defend its islands and insure its territorial integrity pursuant to a relationship built
in, and make alterations and improvements to, the agreed locations, facilities, or areas.439 As in EDCA, the host on the MDT and VFA.
states retain ownership and jurisdiction over the said bases.440 8. Others issues and concerns raised
In fact, some of the host states in these agreements give specific military-related rights to the U.S. For example, A point was raised during the oral arguments that the language of the MDT only refers to mutual help and
under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States forces x x x are defense in the Pacific area.453 We believe that any discussion of the activities to be undertaken under EDCA vis-
authorized access to and may use agreed facilities and areas x x x for staging and deploying of forces and a-vis the defense of areas beyond the Pacific is premature. We note that a proper petition on that issue must be
materiel, with the purpose of conducting x x x contingency operations and other missions, including those filed before we rule thereon. We also note that none of the petitions or memoranda has attempted to discuss this
undertaken in the framework of the North Atlantic Treaty." In some of these agreements, host countries allow 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.
U.S. forces to construct facilities for the latter’s exclusive use.441 This is a matter of policy and is beyond the scope of this judicial review.
Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive Secretary, the In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility adverted
Court already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S. forces to set up to does appear to be one of those that require a public franchise by way of congressional action under Section
"[t]emporary structures such as those for troop billeting, classroom instruction and messing x x x during the 11, Article XII of the Constitution. As respondents submit, however, the system referred to in the agreement does
Exercise." Similar provisions are also in the Mutual Logistics Support Agreement of 2002 and 2007, which are not provide telecommunications services to the public for compensation.454 It is clear from Article VIl(2) of EDCA
essentially executive agreements that implement the VFA, the MDT, and the 1953 Military Assistance Agreement. that the telecommunication system is solely for the use of the U.S. and not the public in general, and that this
These executive agreements similarly tackle the "reciprocal provision of logistic support, supplies, and system will not interfere with that which local operators use. Consequently, a public franchise is no longer
services,"442 which include "[b ]illeting, x x x operations support (and construction and use of temporary structures necessary.
incident to operations support), training services, x x x storage services, x x x during an approved Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely speculative. It is
activity."443 These logistic supplies, support, and services include temporary use of "nonlethal items of military noteworthy that the agreement in fact specifies that the prepositioned materiel shall not include nuclear
equipment which are not designated as significant military equipment on the U.S. Munitions List, during an weapons.455Petitioners argue that only prepositioned nuclear weapons are prohibited by EDCA; and that,
approved activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one has been therefore, the U.S. would insidiously bring nuclear weapons to Philippine territory. 456 The general prohibition on
extended until 2017 without any formal objection before this Court from the Senate or any of its members. nuclear weapons, whether prepositioned or not, is already expressed in the 1987 Constitution. 457 It would be
The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned executive unnecessary or superfluous to include all prohibitions already in the Constitution or in the law through a
agreements. Instead of authorizing the building of temporary structures as previous agreements have done, document like EDCA.
EDCA authorizes the U.S. to build permanent structures or alter or improve existing ones for, and to be owned Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate from Congress.
by, the Philippines.445 EDCA is clear that the Philippines retains ownership of altered or improved facilities and This allegation ignores jurisprudence on the government's assumption of tax liability. EDCA simply states that the
newly constructed permanent or non-relocatable structures. 446 Under EDCA, U.S. forces will also be allowed to taxes on the use of water, electricity, and public utilities are for the account of the Philippine Government. 458 This
use facilities and areas for "training; x x x; support and related activities; x x x; temporary accommodation of provision creates a situation in which a contracting party assumes the tax liability of the other. 459 In National
personnel; communications" and agreed activities.447 Power Corporation v. Province of Quezon, we distinguished between enforceable and unenforceable stipulations
Concerns on national security problems that arise from foreign military equipment being present in the on the assumption of tax liability. Afterwards, we concluded that an enforceable assumption of tax liability
Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the presence requires the party assuming the liability to have actual interest in the property taxed. 460 This rule applies to EDCA,
of U.S. military equipment in the country. Article VII of the VFA already authorizes the U.S. to import into or since the Philippine Government stands to benefit not only from the structures to be built thereon or improved,
acquire in the Philippines "equipment, materials, supplies, and other property" that will be used "in connection but also from the joint training with U.S. forces, disaster preparation, and the preferential use of Philippine
with activities" contemplated therein. The same section also recognizes that "[t]itle to such property shall remain" suppliers.461 Hence, the provision on the assumption of tax liability does not constitute a tax exemption as
with the US and that they have the discretion to "remove such property from the Philippines at any time." petitioners have posited.
There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense equipment, Additional issues were raised by petitioners, all relating principally to provisions already sufficiently addressed
supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries have already entered above. This Court takes this occasion to emphasize that the agreement has been construed herein as to
into various implementing agreements in the past that are comparable to the present one. The Balikatan 02- absolutely disauthorize the violation of the Constitution or any applicable statute. On the contrary, the applicability
1 Terms of Reference mentioned in Lim v. Executive Secretary specifically recognizes that Philippine and U.S. of Philippine law is explicit in EDCA.
forces "may share x x x in the use of their resources, equipment and other assets." Both the 2002 and 2007 EPILOGUE
Mutual Logistics Support Agreements speak of the provision of support and services, including the "construction The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities in
and use of temporary structures incident to operations support" and "storage services" during approved Philippine history arises not so much from xenophobia, but from a genuine desire for self-determination,
activities.449 These logistic supplies, support, and services include the "temporary use of x x x nonlethal items of nationalism, and above all a commitment to ensure the independence of the Philippine Republic from any foreign
military equipment which are not designated as significant military equipment on the U.S. Munitions List, during domination.
an approved activity."450Those activities include "combined exercises and training, operations and other Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional
deployments" and "cooperative efforts, such as humanitarian assistance, disaster relief and rescue operations, prerogatives in respect of foreign affairs. They cannot cripple him when he deems that additional security
and maritime anti-pollution operations" within or outside Philippine territory. 451 Under EDCA, the equipment, measures are made necessary by the times. As it stands, the Philippines through the Department of Foreign
supplies, and materiel that will be prepositioned at Agreed Locations include "humanitarian assistance and Affairs has filed several diplomatic protests against the actions of the People's Republic of China in the West
disaster relief equipment, supplies, and materiel. "452 Nuclear weapons are specifically excluded from the materiel Philippine Sea;462 initiated arbitration against that country under the United Nations Convention on the Law of the
that will be prepositioned. 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 NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
military is conducting reforms that seek to ensure the security and safety of the nation in the years to come. 466 In SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
the future, the Philippines must navigate a world in which armed forces fight with increasing sophistication in both FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
strategy and technology, while employing asymmetric warfare and remote weapons. EMMANUEL T. BAUTISTA, Respondents.
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- G.R. No. 212444
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 BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO
necessitated a massive rehabilitation project.468 In the aftermath, the U.S. military was among the first to extend M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES, AND CARLOS
help and support to the Philippines. ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE
That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their help, their JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
wealth, and their prayers to those affected. It also brought to the fore the value of having friends in the REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON,
international community. MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO
In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the same time OCAMPO, AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO,
against the destructive forces of nature, the Philippines will need friends. Who they are, and what form the SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners, v.DEPARTMENT
friendships will take, are for the President to decide. The only restriction is what the Constitution itself expressly OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
prohibits. It appears that this overarching concern for balancing constitutional requirements against the dictates SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED
of necessity was what led to EDCA. FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with existing laws UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR
and treaties that it purports to implement. J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND
WHEREFORE, we hereby DISMISS the petitions. DND ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
SO ORDERED. CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES
MARIA LOURDES P. A. SERENO ON EDCA, Respondents.
Chief Justice
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.

RESOLUTION
SERENO, C.J.:
The Motion for Reconsideration before us seeks to reverse the Decision of this Court in Saguisag et. al., v.
Executive Secretary dated 12 January 2016.1 The petitions in Sasguisag, et. al.2 had questioned the
constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the
Philippines and the United States of America (U.S.). There, this Court ruled that the petitions be
dismissed.3chanrobleslaw

On 3 February 2016, petitioners in the Decision filed the instant Motion, asking for a reconsideration of the
Decision in Saguisag, et. al., questioning the ruling of the Court on both procedural and substantive
grounds, viz:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, petitioners respectfully pray that the Honorable Court RECONSIDER,
REVERSE, AND SET - ASIDE its Decision dated January 12, 2016, and issue a new Decision GRANTING the
EN BANC instant consolidated petitions by declaring the Enhanced Defense Cooperation Agreement (EDCA) entered into
G.R. No. 212426, July 26, 2016 by the respondents for the Philippine government, with the United States of America, UNCONSTITUTIONAL
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY AND INVALID and to permanently enjoin its implementation.
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, Other forms of relief just and equitable under the premises are likewise prayed for.
AND TEDDY CASIÑO, Petitioners, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF
At the outset, petitioners questioned the procedural findings of the Court despite acknowledging the fact that the executive agreement such as the EDCA was well within the bounds of the obligations imposed by both treaties.
Court had given them standing to sue.4 Therefore this issue is now irrelevant and academic, and deserves no
reconsideration. On strict construction of an exception

As for the substantive grounds, petitioners claim this Court erred when it ruled that EDCA was not a treaty. 5In This Court agrees with petitioners' cited jurisprudence that exceptions are strictly construed. 16 However, their
connection to this, petitioners move that EDCA must be in the form of a treaty in order to comply with the patent misunderstanding of the Decision and the confusion this creates behooves this Court to address this
constitutional restriction under Section 25, Article XVIII of the 1987 Constitution on foreign military bases, troops, argument.
and facilities.6 Additionally, they reiterate their arguments on the issues of telecommunications, taxation, and
nuclear weapons.7chanrobleslaw To be clear, the Court did not add an exception to Section 25 Article XVIII. The general rule is that foreign bases,
troops, and facilities are not allowed in the Philippines.17 The exception to this is authority granted to the foreign
We deny the Motion for Reconsideration. state in the form of a treaty duly concurred in by the Philippine Senate. 18chanrobleslaw

Petitioners do not present new arguments to buttress their claims of error on the part of this Court. They have It is in the operation of this exception that the Court exercised its power of review. The lengthy legal analysis
rehashed their prior arguments and made them responsive to the structure of the Decision in Saguisag, yet the resulted in a proper categorization of EDCA: an executive agreement authorized by treaty. This Court undeniably
points being made are the same. considered the arguments asserting that EDCA was, in fact, a treaty and not an executive agreement, but these
arguments fell flat before the stronger legal position that EDCA merely implemented the VFA and MDT. As we
However, certain claims made by petitioners must be addressed. stated in the Decision:ChanRoblesVirtualawlibrary
xxx [I]t must already be clarified that the terms and details used by an implementing agreement need not be
On verba legis interpretation 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.19chanroblesvirtuallawlibrary
Petitioners assert that this Court contradicted itself when it interpreted the word "allowed in" to refer to the initial Hence, the argument that the Court added an exception to the law is erroneous and potentially misleading. The
entry of foreign bases, troops, and facilities, based on the fact that the plain meaning of the provision in question parties, both petitioners and respondents must therefore read the Decision carefully in order to fully comply with
referred to prohibiting the return of foreign bases, troops, and facilities except under a treaty concurred in by the its disposition.
Senate.8chanrobleslaw
On EDCA as a treaty
This argument fails to consider the function and application of the verba legis rule.
The principal reason for the Motion for Reconsideration is evidently petitioners' disagreement with the Decision
Firstly, verba legis is a mode of construing the provisions of law as they stand. 9 This takes into account the that EDCA implements the VFA and MDT. They reiterate their arguments that EDCA's provisions fall outside the
language of the law, which is in English, and therefore includes reference to the meaning of the words based on allegedly limited scope of the VFA and MDT because it provides a wider arrangement than the VFA for military
the actual use of the word in the language. bases, troops, and facilities, and it allows the establishment of U.S. military bases. 20chanrobleslaw

Secondly, by interpreting "allowed in" as referring to an initial entry, the Court has simply applied the plain Specifically, petitioners cite the terms of the VFA referring to "joint exercises," 21 such that arrangements involving
meaning of the words in the particular provision.10 Necessarily, once entry has been established by a subsisting the individual States-parties such as exclusive use of prepositioned materiel are not covered by the VFA. More
treaty, latter instances of entry need not be embodied by a separate treaty. After all, the Constitution did not state emphatically, they state that prepositioning itself as an activity is not allowed under the VFA. 22chanrobleslaw
that foreign military bases, troops, and facilities shall not subsist or exist in the Philippines.
Evidently, petitioners left out of their quote the portion of the Decision which cited the Senate report on the VFA.
Petitioners' own interpretation and application of the verba legis rule will in fact result in an absurdity, which legal The full quote reads as follows:ChanRoblesVirtualawlibrary
construction strictly abhors.11 If this Court accept the essence of their argument that every instance of entry by Siazon clarified that it is not the VFA by itself that determines what activities will be conducted between the
foreign bases, troops, and facilities must be set out in detail in a new treaty, then the resulting bureaucratic armed forces of the U.S. and the Philippines. The VFA regulates and provides the legal framework for the
impossibility of negotiating a treaty for the entry of a head of State's or military officer's security detail, meetings presence, conduct and legal status of U.S. personnel while they are in the country for visits, joint exercises
of foreign military officials in the country, and indeed military exercises such as Balikatan will occupy much of, if and other related activities.23chanroblesvirtuallawlibrary
not all of the official working time by various government agencies. This is precisely the reason why any valid Quite clearly, the VFA contemplated activities beyond joint exercises, which this Court had already recognized
mode of interpretation must take into account how the law is exercised and its goals effected.12Ut res magis and alluded to in Lim v. Executive Secretary,24 even though the Court in that case was faced with a challenge to
valeat quam pereat. the Terms of Reference of a specific type of joint exercise, the Balikatan Exercise.

The Constitution cannot be viewed solely as a list of prohibitions and limitations on governmental power, but One source petitioners used to make claims on the limitation of the VFA to joint exercises is the alleged
rather as an instrument providing the process of structuring government in order that it may effectively serve the Department of Foreign Affairs (DFA) Primer on the VFA, which they claim states that:ChanRoblesVirtualawlibrary
people.13 It is not simply a set of rules, but an entire legal framework for Philippine society. Furthermore, the VFA does not involve access arrangements for United States armed forces or the pre-
positioning in the country of U.S. armaments and war materials. The agreement is about personnel and not
In this particular case, we find that EDCA did not go beyond the framework. The entry of US troops has long equipment or supplies.25cralawredchanroblesvirtuallawlibrary
been authorized under a valid and subsisting treaty, which is the Visiting Forces Agreement (VFA).14 Reading the Unfortunately, the uniform resource locator link cited by petitioners is inaccessible. However, even if we grant its
VFA along with the longstanding Mutual Defense Treaty (MDT) 15 led this Court to the conclusion that an veracity, the text of the VFA itself belies such a claim. Article I of the VFA states that "[a]s used in this Agreement,
"United States personnel" means United States military and civilian personnel temporarily in the Philippines in rights and obligations.
connection with activities approved by the Philippine Government."26 These "activities" were, as stated in Lim, left
to further implementing agreements. It is true that Article VII on Importation did not indicate pre-positioned However, this principle does not mean that the domestic law distinguishing treaties, international agreements,
materiel, since it referred to "United States Government equipment, materials, supplies, and other property and executive agreements is relegated to a mere variation in form, or that the constitutional requirement of
imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with Senate concurrence is demoted to an optional constitutional directive. There remain two very important features
activities to which this agreement applies[.]" 27chanrobleslaw that distinguish treaties from executive agreements and translate them into terms of art in the domestic setting.

Nonetheless, neither did the text of the VFA indicate "joint exercises" as the only activity, or even as one of those First, executive agreements must remain traceable to an express or implied authorization under the
activities authorized by the treaty. In fact, the Court had previously noted that Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
[n]ot much help can be had therefrom [VFA], unfortunately, since the terminology employed is itself the source of executive agreements under serious question for the main function of the Executive is to enforce the Constitution
the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules. In turn,
exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of executive agreements cannot create new international obligations that are not expressly allowed or reasonably
undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its implied in the law they purport to implement.
definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of
are fair game.28chanroblesvirtuallawlibrary the acts of the Executive and the Senate unlike executive agreements, which are solely executive actions.
Moreover, even if the DFA Primer was accurate, properly cited, and offered as evidence, it is quite clear that the Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a
DFA's opinion on the VFA is not legally binding nor conclusive. 29 It is the exclusive duty of the Court to interpret statute. If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An
with finality what the VFA can or cannot allow according to its provisions. 30chanrobleslaw executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a
treaty are considered ineffective. Both types of international agreement are nevertheless subject to the
In addition to this, petitioners detail their objections to EDCA in a similar way to their original petition, claiming supremacy of the Constitution.33 (Emphasis supplied, citations omitted)
that the VFA and MDT did not allow EDCA to contain the following provisions: Subsequently, the Decision goes to great lengths to illustrate the source of EDCA's validity, in that as an
executive agreement it fell within the parameters of the VFA and MDT, and seamlessly merged with the whole
chanRoblesvirtualLawlibrary web of Philippine law. We need not restate the arguments here. It suffices to state that this Court remains
1. Agreed Locations unconvinced that EDCA deserves treaty status under the law.

2. Rotational presence of personnel On EDCA as basing agreement

3. U.S. contractors Petitioners claim that the Decision did not consider the similarity of EDCA to the previous Military Bases
Agreement (MBA) as grounds to declare it unconstitutional.34chanrobleslaw
4. Activities of U.S. contractors31
Firstly, the Court has discussed this issue in length and there is no need to rehash the analysis leading towards
We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions. The very the conclusion that EDCA is different from the MBA or any basing agreement for that matter.
nature of EDCA, its provisions and subject matter, indubitably categorize it as an executive agreement - a class
of agreement that is not covered by the Article XVIII Section 25 restriction - in painstaking detail. 32 To partially Secondly, the new issues raised by petitioners are not weighty enough to overturn the legal distinction between
quote the Decision:ChanRoblesVirtualawlibrary EDCA and the MBA.
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, In disagreeing with the Court in respect of the MBA's jurisdictional provisions, petitioners cite an exchange of
past Supreme Court Decisions, and works of noted scholars, executive agreements merely involve notes categorized as an "amendment" to the MBA, as if to say it operated as a new treaty and should be read
arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded (1) to into the MBA.35chanrobleslaw
adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of the Legislature; or (3) in the
exercise of the President's independent powers under the Constitution. The raison d'etre of executive This misleadingly equates an exchange of notes with an amendatory treaty. Diplomatic exchanges of notes are
agreements hinges on prior constitutional or legislative authorizations. not treaties but rather formal communication tools on routine agreements, akin to private law contracts, for the
executive branch.36 This cannot truly amend or change the terms of the treaty, 37 but merely serve as private
The special nature of an executive agreement is not just a domestic variation in international agreements. contracts between the executive branches of government. They cannot ipso facto amend treaty obligations
International practice has accepted the use of various forms and designations of international agreements, between States, but may be treaty-authorized or treaty-implementing. 38chanrobleslaw
ranging from the traditional notion of a treaty - which connotes a formal, solemn instrument - to engagements
concluded in modern, simplified forms that no longer necessitate ratification. An international agreement may Hence, it is correct to state that the MBA as the treaty did not give the Philippines jurisdiction over the bases
take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, because its provisions on U.S. jurisdiction were explicit. What the exchange of notes did provide was effectively a
declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus contractual waiver of the jurisdictional rights granted to the U.S. under the MBA, but did not amend the treaty
vivendi, or some other form. Consequently, under international law, the distinction between a treaty and an itself.
international agreement or even an executive agreement is irrelevant for purposes of determining international
Petitioners reassert that EDCA provisions on operational control, access to Agreed Locations, various rights and capacity to generate entitlements to maritime zones by permanently destroying evidence of the natural condition
authorities granted to the US "ensures, establishes, and replicates what MBA had provided." 39 However, as of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi
thoroughly and individually discussed in Saguisag, et. al., the significant differences taken as a whole result in a Reef.54chanrobleslaw
very different instrument, such that EDCA has not re-introduced the military bases so contemplated under Article
XVIII Section 25 of the Constitution. 40chanrobleslaw Taken as a whole, the arbitral tribunal has painted a harrowing picture of a major world power unlawfully
imposing its might against the Philippines, There are clear indications that these violations of the Philippines'
On policy matters sovereign rights over its EEZ are continuing. The Philippine state is constitutionally-bound to defend its
sovereignty, and must thus prepare militarily.
Petitioners have littered their motion with alleged facts on U.S. practices, ineffective provisions, or even absent
provisions to bolster their position that EDCA is invalid. 41 In this way, petitioners essentially ask this Court to No less than the 1987 Constitution demands that the "State shall protect the nation's marine wealth in its
replace the prerogative of the political branches and rescind the EDCA because it not a good deal for the archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively
Philippines. Unfortunately, the Court's only concern is the legality of EDCA and not its wisdom or folly. Their to Filipino citizens."55chanrobleslaw
remedy clearly belongs to the executive or legislative branches of government.
EPILOGUE No less than the 1987 Constitution states that the principal role of the military under the President as
commander-in-chief shall be as protector of the people and the State to secure the sovereignty of the State and
While this Motion for Reconsideration was pending resolution, the United Nations Permanent Court of Arbitration the integrity of the national territory.56chanrobleslaw
tribunal constituted under the Convention on the Law of the Sea (UNCLOS) in Republic of the Philippines v.
People's Republic of China released its monumental decision on the afternoon of 12 July 2016. 42The findings To recall, the Philippines and the U.S. entered into the MDT in 1951 57 with two things in mind, first, it allowed for
and declarations in this decision contextualizes the security requirements of the Philippines, as they indicate an mutual assistance in maintaining and developing their individual and collective capacities to resist an armed
alarming degree of international law violations committed against the Philippines' sovereign rights over its attack;58 and second, it provided for their mutual self-defense in the event of an armed attack against the territory
exclusive economic zone (EEZ). of either party.59 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.60chanrobleslaw
Firstly, the tribunal found China's claimed nine-dash line, which included sovereign claims over most of the West
Philippine, invalid under the UNCLOS for exceeding the limits of China's maritime zones granted under the The EDCA embodies this very purpose. It puts into greater effect a treaty entered into more than 50 years ago in
convention.43chanrobleslaw order to safeguard the sovereignty of the Philippines, and cement the military friendship of the U.S. and
Philippines that has thrived for decades through multiple presidents and multiple treaties. While it is a fact that
Secondly, the tribunal found that the maritime features within the West Philippine Sea/South China Sea that our country is now independent, and that the 1987 Constitution requires Senate consent for foreign military
China had been using as basis to claim sovereign rights within the Philippines' EEZ were not entitled to bases, troops, and facilities, the EDCA as envisioned by the executive and as formulated falls within the legal
independent maritime zones.44chanrobleslaw regime of the MDT and the VFA.

Thirdly, the tribunal found that the actions of China within the EEZ of the Philippines, namely; forcing a Philippine In the context of recent developments, the President is bound to defend the EEZ of the Philippines and ensure its
vessel to cease-and-desist from survey operations,45 the promulgation of a fishing moratorium in 2012,46 the vast maritime wealth for the exclusive enjoyment of Filipinos. In this light, he is obligated to equip himself with all
failure to exercise due diligence in preventing Chinese fishing vessels from fishing in the Philippines' EEZ without resources within his power to command. With the MDT and VFA as a blueprint and guide, EDCA strengthens the
complying with Philippine regulations,47 the failure to prevent Chinese fishing vessels from harvesting Armed Forces of the Philippines and through them, the President's ability to respond to any potential military
endangered species,48 the prevention of Filipino fishermen from fishing in traditional fishing grounds in crisis with sufficient haste and greater strength.
Scarborough Shoal,49 and the island-building operations in various reefs, all violate its obligations to respect the
rights of the Philippines over its EEZ. 50chanrobleslaw The Republic of Indonesia is strengthening its military presence and defences in the South China Sea. 61Vietnam
has lent its voice in support of the settlement of disputes by peaceful means 62 but still strongly asserts its
Fourthly, the tribunal rejected Chinese claims of sovereignty over features within the Philippine's EEZ, 51 and sovereignty over the Paracel islands against China. 63 The international community has given its voice in support
found that its construction of installations and structures, and later on the creation of an artificial island, violated of the tribunal's decision in the UNCLOS arbitration. 64chanrobleslaw
its international obligations.52chanrobleslaw
Despite all this, China has rejected the ruling.65 Its ships have continued to drive off Filipino fishermen from areas
Fifthly, the tribunal found that the behaviour of Chinese law enforcement vessels breached safe navigation within the Philippines' EEZ.66 Its military officials have promised to continue its artificial island-building in the
provisions of the UNCLOS in respect of near-collision instances within Scarborough Shoal. 53chanrobleslaw contested areas despite the ruling against these activities. 67chanrobleslaw

Finally, the tribunal found that since the arbitration was initiated in 2013, China has aggravated the dispute by In this light, the Philippines must continue to ensure its ability to prevent any military aggression that violates its
building a large artificial island on a low-tide elevation located in the EEZ of the Philippines aggravated the sovereign rights. Whether the threat is internal or external is a matter for the proper authorities to decide.
Parties' dispute concerning the protection and preservation of the marine environment at Mischief Reef by President Rodrigo Roa Duterte has declared, in his inaugural speech, that the threats pervading society are
inflicting permanent, irreparable harm to the coral reef habitat of that feature, extended the dispute concerning many: corruption, crime, drugs, and the breakdown of law and order. 68 He has stated that the Republic of the
the protection and preservation of the marine environment by commencing large-scale island-building and Philippines will honor treaties and international obligations. 69 He has also openly supported EDCA's
construction works at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (Norths Johnson Reef, Hughes Reef, and continuation.70chanrobleslaw
Subi Reef, aggravated the dispute concerning the status of maritime features in the Spratly Islands and their
Thus, we find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines' legal
regime through the MDT and VFA. It also fully conforms to the government's continued policy to enhance our
military capability in the face of various military and humanitarian issues that may arise. This Motion for
Reconsideration has not raised any additional legal arguments that warrant revisiting the Decision.

WHEREFORE, we hereby DENY the Motion for Reconsideration.

SO ORDERED.chanRoblesvirtualLawlibrary

Velasco, J., Bersamin, Del Castillo, Perez Mendoza, and Reyes, JJ., concur.
Carpio, J., Ireiterate my Separate Concurring Opinion.
Leonardo-De Castro, J., Please see Dissenting Opinion.
Brion, J., See Dissenting Opinion.
Peralta, J., I join the opinion of J. Carpio.
Perlas-Bernabe, J., Please see Dissenting Opinion.
Leonen, J., See Dissenting Opinion.
Jardeleza, J., No part.
Caguioa, J., No part.