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En Banc Decision
Facts:
The Constitution in Sec. 1 of Art. VII has vested the executive power in the
President of the Philippines. From the office of the Chief Executive flows vast
powers, two of which that are related to the case at bar are the military power and
diplomatic power of the President. The Constitution further provides in Sec. 4 Art.
II that the prime duty of the Government, of which the president is the head, is to
serve and protect its people . The government may call upon the people to defend
the State and, in fulfillment thereof, all citizens may be required, under condition
provided by law, to render personal and military service.
The military power of the President can be gleaned from Sec. 18, Art VII of the
Constitution. As such, the duty to protect and defend the State extends throughout
the national territory, the President being its head, the sole repository of executive
power , is then the guardian of the archipelago, the scope of which is expressed in
Art. I of the Constitution.
In order to effectively carry out the mandates of his office, the President as
Commander-in-Chief is equipped with authority over the Armed Forces of the
Philippines, the protector of the people and the State, specifically to secure the
sovereignty of the State and the integrity of the national territory. The President
assumes this role because he, by Constitutional fiat, has to maintain peace and
order, protect life, liberty and property and promote general welfare.
Nevertheless, this vast military power of the President is however limited by the
Constitution itself.
For the diplomatic power of the President, his office carries the mandate of being
the sole organ in the conduct of foreign relations pursuant to Sec. 1, Art VII of the
Constitution. Specifically, Sec. 21 of Art. VII provides that the President has the
power to enter into treaties or international agreements. The conduct of which is
full of complexities and consequences that it can only be rightfully entrusted to
that department of the government which can act on the basis of the best
information available and thus act with decisiveness, the President. In line with
this, the President is given a wider degree of discretion in the conduct of foreign
affairs. Otherwise, his conduct, if judicially repudiated, may lead the country to
suffer: breach of international obligations, rupture of state relations, forfeiture of
confidence, national embarrassment and the multitude of other problems with
undesirable effects.
Relating these 2 powers, the military power and diplomatic power, the power to
defend the State and to act as its representative is inherent in the President.
However, this does not give him absolute discretion to craft whatever instrument
he so desires. This is where the Senate comes in, manifestly in adherence to the
principle of checks and balances, wherein the Senate has a role in ensuring that the
treaties entered into by the President ( Sec. 21, Art VII of the Constitution) obtain
first the approval of at least 2/3 of all its members, lest it is deemed invalid,
ineffective and unenforceable. From this it can be gleaned, that the President shares
the responsibilities with the Senate in the treaties he enters into. This shared role is
what, petitioners claim, is bypassed by EDCA.
The Philippines, led by General Emilio Aguinaldo, went into an all-out war after it
was apparent that the U.S. intended to impose colonial control over the Philippines.
This was lasted until 1902, the Philippines defeated, leading to the downfall of the
1st Philippine Republic. With this victory, the Americans strengthened their
foothold on the country taking over and expanding the former Spanish Naval Base
in Subic Bay and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.
The Hare-Hawes Cutting Act of 1933 was enacted by the U.S. Congress which
required that the proposed constitution that the Philippines was desiring in its
independence, include the right of the U.S. to maintain its armed forces and
military bases. The Philippine Legislature rejected the law because it unilaterally
gave power to the U.S. to designate any part of the Philippine territory as a
permanent military or naval base of the U.S. within 2 years of its independence.
At the height of the Second World War, the plan to surrender the military bases
changed as Legislatures of the Philippines and U.S. respectively passed resolutions
authorizing the negotiations regarding the retention of the bases.
In 1946, the RP-US Treaty of General Relations was entered into relinquishing US
control over the Philippine islands except those covered by the American bases in
the country, which treaty eventually lead to the post-colonial legal regime that
would retain the presence of the U.S. military forces until 1991: the Military Bases
Agreement of 1947, the Military Assistance Agreement of 1947 and the Mutual
Defense treaty of 1951.
After the Philippine independence in 1946, the MBA was entered into wherein the
Senate concurred on the premise of mutuality of security interest. MBA provided
for the presence and operation of the 23 military bases of the US in RP for a period
of 99 years or until 2046. It also obliged RP to negotiate with the US to allow the
US to expand the existing bases or acquire new ones as necessity might require.
The Ramos- Rusk Agreement was entered into in 1966, modifying some provisions
of the MBA, specifically reducing the period of 99 years to 44 years or until 1991.
In 1951, the MDT was entered into to further strengthen the defense and security
relationship of the RP and the US, concurred by both countrys senate bodies. This
treaty was premised on the recognition that an armed attack on either of them
would equally be a threat on the security of the other.
In view of the impending expiration of the 1947 MBA in 1991, both contracting
States entered into another treaty to extend US bases stay in the country. The
Senate however rejected the treaty, leading to the expiration of the MBA and the
suspension of large-scale military exercises.
The military arrangements between the parties resumed as they entered into the
Visiting Forces Agreement which consist of 2 parts (VFA I and VFA II) regulating
the mechanism of US military and civilian personnel entering the Philippines and
vice versa. This was concurred by the Senate. It eventually gave birth to the
Balikatan Exercises which are trainings aimed at simulating joint military
maneuvers pursuant to the MDT.
After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases,
foreign military bases, troops or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and , when
the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.
The Senate, through Senate Resolution 105, also expressed its position that EDCA
needs congressional ratification.
Issues:
1. Whether the essential requisites for judicial review are present
2. Whether the President may enter into an executive agreement on foreign
military bases, troops or facilities
3. Whether the provisions of EDCA are consistent with the Constitution, as
well as with existing laws or treaties
I.
The power of judicial review refers to both the authority and duty of the Court to
determine whether a branch or instrumentality of the government has acted beyond
the scope of the latters constitutional powers. This power is also called the
moderating power in Angara vs Electoral Commission, which is part of the
checks and balances under the Constitution.
The court has cited in the US case of Ashwander vs Tennessee Valley, the pillars
of the limitations for judicial review:
a. That there be absolute necessity of deciding a case
b. That rules of constitutional law shall be formulated only as required of the
facts
c. That judgment may not be sustained on some other ground
d. That there be actual injury sustained by the party by reason of the operation
of the statute
e. That the parties are not in estoppel
f. That the Court upholds the presumption of constitutionality
From these the power of judicial review may be invoked following the four
requirements: (a) there must be an actual case or controversy, (b) petitioners
possess locus standi, (c) the question of constitutionality is raised at the earliest
opportunity and (d) the issue constitutionality is the lis mota of the case. Of these
four, the first two are the most important.
1. The role of the President as the executor of the law includes the duty to defend
the State, for which purpose he may use that power in the conduct of foreign
relations.
One of the principal functions of the supreme executive is the responsibility for the
faithful execution of the laws as embodied in his oath of office prescribed by the
Constitution:
Sec. 5, Art. VII:
I do solemnly swear (or affirm) that I will faithfully and conscientiously
fulfill my duties as President (or VP or Acting President) of the Philippines ,
preserve and defend its Constitution, execute its laws, do justice to every
man and consecrate myself to the service of the nation. So help me God.
This is an obligation imposed upon the President and not a separate power. It is the
power of control over the executive department that has been provided for in the
Constitution in Sec. 15, Art. VII:
The President shall have control of all executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
In light of this constitutional duty, the President has the prerogative to do whatever
is legal and necessary for the Philippine defense interests. I t would be further a
remiss for the President and repugnant to the faithful-execution clause to do
nothing when the call of the moment requires increasing the militarys defensive
capabilities, which could include forging alliances with states that hold a common
interest with the Philippines or bringing an international suit against an offending
state.
In sum, the Presidents duty to execute the laws and protect this country is
inextricably interwoven with his foreign affairs powers, such that he must resolve
issued imbued with both concerns to the full extent of his powers, subject to limits
supplied by law. In other words, apart from an expressly mandated limit, or an
implied limit by virtue of incompatibility, the manner of execution by the
President must be given utmost deference. Understandably, this case must be
viewed with the perspective that the President must be given a degree of discretion
in the conduct of foreign relations knowing fully well the repercussions
,constitutional and legal, of any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military
bases, troops or facilities, except by way of a treaty concurred in by the Senate-
a clear limitation on the Presidents dual role as defender of the State and as
sole authority in foreign relations.
Despite the Presidents roles as defender of the State and sole authority in the
conduct of foreign relations, it is nevertheless limited in 2 instances:
Sec. 21, Art. VII:
No treaty or international agreement shall be valid unless concurred in by
at least 2/3 of all the members of the Senate.
And
3. The President may enter into an executive agreement on foreign military bases
if:
It is not the instrument that allows the presence of foreign military bases,
troops or facilities
It merely aims to implement an existing law or treaty
Second, the MDT which the repondents claim to be what the EDCA is supposed to
implement is not obsolete as Sen. Miriam Santiago declared, as the Court still
continues to recognize its validity.
Third, the provision in Sec. 25, Art. XVIII states shall not be allowed in
signifies that the President is not authorized by law to allow foreign military bases,
troops or facilities to enter the Philippines, except under a treaty concurred in by
the Senate. Hence, this restriction pertains to the initial entry and not to activities
done after entry. Once entry is authorized, the subsequent acts are subject only to
the limitations imposed by the rest of the constitution and Philippine laws but not
Sec. 25, Art XVIII.
Needless to say, the VFA already allowed the entry of troops in the Philippines,
which treaty was concurred in by the Senate.
Verba legis or the plain meaning of the provision is all it takes in the construction
of the same.
4. The President may generally enter into executive agreements subject to
limitations provided by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.
One of the distinct features of an executive agreement is that its validity and
effectivity are not affected by the lack of Senate concurrence, as stated in Eastern
Sea Trading:
Treaties are formal documents which require ratification with the approval of
2/3 of the Senate. Executive agreements become binding through executive
action without need of a vote by the Senate or Congress.
In the field of external affairs, the President must be given a larger measure of
authority and wider discretion , subject only to the least amount of checks and
restrictions under the Constitution. Further, EO 459 or the Guidelines in the
Negotiation of International Agreements and its Ratification, thus, correctly
reflected the inherent powers of the President when it stated that the DFA shall
determine whether an agreement is an executive agreement or a treaty.
Accordingly, the Court does not look whether an international agreement should
be in a form of a treaty or executive agreement but whether the international
agreement is consistent with the applicable limitations.
In Lim vs Executive Secretary, the Court upheld the provisions of the Terms of
Reference of Balikatan 02-1 joint military exercises as being consistent with the
treaty it purported to implement, the VFA.
7. EDCA is consistent with the content, purpose and framework of the MDT and
VFA.
An executive agreement may not be used to amend a treaty. This is clear in the
preamble of the resolution issued by the Senate regarding the VFA.
Justice Leonen presented his dissenting opinion on this present case which shall be
answered aaccordingly:
accordingly:
a. EDCA does not only regulate visits as VFA does but allows temporary
stationing on a rotational basis of the US military personnel and their
contractors in physical locations with permanent facilities and pre-
positioned military materiel.
This argument fails to account the fact the under EDCA, the permanent
facilities built by the US on Agreed Locations are to be owned by the
Philippines once constructed. The VFA allowed the same.
In Lim vs Secretary, the Court stated the both the history and intent of the
MDT and VFA support the conclusion that combat-related activities as
opposed to combat itself are authorized. Hence, even if borne out of
military necessity, EDCA cannot be said to have departed from the intent
of VFA since combat-related components are allowed under the treaty.
Further, even if the activities were not specified, the Court cannot by
judicial review cover potential breaches of discretion but actual
occurrences or blatantly illegal provisions.
The terms used in EDCA need not be sourced from the mother treaty.
They must be sourced from the authority derived from the treaty, but are
not necessarily expressed word-for-word in the mother treaty.
Both the VFA and EDCA ensure Philippine jurisdiction with the
exception found in the VFA. In VFA taxes are clearly waived while in
EDCA, taxes are assumed by the government. EDCA states that the taxes
on the use of water, electricity and public utilities are for the account of
the government. An enforceable assumption of tax liability requires the
assuming party to have actual interest in the property taxed (NPC vs
Province of Quezon). This rule applies to EDCA since the Philippines
stands to benefit not only from the structures to be built or improved but
also from joint training the US military forces, disaster preparation and
preferential use of Philippine suppliers. Hence, the provision of tax
liability assumption does not constitute tax exemption.
US contractors are not explicitly mentioned in EDCA because they are not granted
the same entry accomodations and privileges enjoyed by US military and civilian
personnel. Hence, they are subject to our Immigration laws like visa and passport
regulations and prove that they are not subject to exclusion under the provisions of
Philippine immigration laws . They may also be denied entry and be deported as
necessities arise.
In contrast, VFA requires a request for removal from the Philippine government
before any member of the US personnel may be removed outside the Philippine
territory.
While petitioners assert that EDCA is actually of a permanent nature since its
initial period of 10 years is automatically renewed gives it a perpetual allowance to
stay. On this issue, the Court notes that EDCA is automatically renewed after 10
years, however, any one of the parties can terminate the agreement unilaterally
with just a requirement of one years notice before the intended termination.
While petitoners assert that these contractors have historically been implicated in
scandals in other parts of the globe involving rendition, torture and human rights
violations, EDCA requires that all activities within the Philippine territory be in
accordance with Philippine laws. Hence certain privileges denied to aliens are
likewise denied to foreign military contractors.
The Court cannot take judicial notice of claims aired in the news reports because
they must be proved first according to the Rules of Evidence. Further, it cannot be
speculated that what is happening to other countires regarding the illegal activities
would take place in the Philippines with certainty.
EDCA provides for the return of the Agreed Locations once no longer
required by the US forces for activities under the said agreement.
This contradicts the petitioners claim of badges of exclusivity as to the Agreed
Locations. It must be noted that the Agreed Locations to be returned would be
based on the authority given to the US by a body represented by both the US and
the Philippines.
It must be noted that the US personnel are to bring equipment, supplies and
materiel to the Agreed Locations for the activities under EDCA. These materials
are then owned by the US but just physically stored or billeted in the Agreed
Locations. Therefore, unimpeded access to these Agreed Locations is a necessary
adjunct to the ownership, use and control of their own equipment. It is not the
unimpeded access to the Agreed locations per se but mere access to items in the
Agreed locations in order to exercise the rights of ownership granted by virtue of
the Philippine Civil Code.
EDCA authorizes the use of public utilities and operate their own
telecommunications.
Yes, but on a different line of reasoning. The petitioners satisfied the requirement
of legal standing in asserting that a public right has been violated through the
commission of an act with grave abuse of discretion. The court may exercise its
power of judicial review over the act of the Executive Department in not
submitting the EDCA agreement for Senate concurrence not because of the
transcendental importance of the issue, but because the petitioners satisfy the
requirements in invoking the courts expanded jurisdiction. Read more
Issue 5: W/N the non-submission of the EDCA agreement for concurrence by the
Senate violates the Constitution
No. The EDCA need not be submitted to the Senate for concurrence because it is
in the form of a mere executive agreement, not a treaty. Under the Constitution,
the President is empowered to enter into executive agreements on foreign military
bases, troops or facilities if
(1) such agreement is not the instrument that allows the entry of such, and
No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the
MDT. Whether the stay of the foreign troops in the country is permanent or
temporary is immaterial because the Constitution does not distinguish. The EDCA
clearly involves the entry of foreign military bases, troops or facilities in the
country. Hence, the absence of Senate concurrence to the agreement makes it an
invalid treaty. Read more
To recall, the Philippines and the U.S. entered into the MDT in 195157 with two
things in mind,
second, it provided for their mutual self-defense in the event of an armed attack
against the territory of either party. The treaty was premised on their recognition
that an armed attack on either of them would equally be a threat to the security of
the other.
The EDCA embodies this very purpose. It puts into greater effect a treaty entered
into more than 50 years ago in order to safeguard the sovereignty of the
Philippines, and cement the military friendship of the U.S. and Philippines that has
thrived for decades through multiple presidents and multiple treaties. While it is a
fact that our country is now independent, and that the 1987 Constitution requires
Senate consent for foreign military bases, troops, and facilities, the EDCA as
envisioned by the executive and as formulated falls within the legal regime of the
MDT and the VF A.
In the context of recent developments, the President is bound to defend the EEZ of
the Philippines and ensure its vast maritime wealth for the exclusive enjoyment of
Filipinos. In this light, he is obligated to equip himself with all resources within his
power to command. With the MDT and VFA as a blueprint and guide, EDCA
strengthens the Armed Forces of the Philippines and through them, the Presidents
ability to respond to any potential military crisis with sufficient haste and greater
strength.
In this light, the Philippines must continue to ensure its ability to prevent any
military aggression that violates its sovereign rights. Whether the threat is internal
or external is a matter for the proper authorities to decide. President Rodrigo Roa
Duterte has declared, in his inaugural speech, that the threats pervading society are
many: corruption, crime, drugs, and the breakdown of law and order. 68 He has
stated that the Republic of the Philippines will honor treaties and inten1ational
obligations. 69 He has also openly supported EDCAs continuation.