G.R. No.

135869 September 22, 1999

RUSTICO H. ANTONIO, petitioner,
vs.
COMMISSION ON ELECTIONS and VICENTE T. MIRANDA, JR., respondents.

GONZAGA-REY ES, J.:

Is the period to appeal a decision of a municipal trial court to the Commission on Elections
("COMELEC") in an election protest involving a barangay position five (5) days per COMELEC Rules
of Procedure or ten (10) days as provided for in Republic Act. 6679 1 and the Omnibus Election Code?
This is the sole issue posed in the instant petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure seeking to annul the order dated August 3, 1998 of the Second Division of the
COMELEC, 2 dismissing the appeal of petitioner Rustico Antonio for having been filed out of time
pursuant to COMELEC Rules of Procedure, and the order promulgated on October 14, 1998 of the
COMELEC en banc, denying petitioner's motion for reconsideration.

The antecedents as found by the COMELEC in the order dated October 14, 1998 are:

The parties in this case were rival candidates for the Punong Barangay of Barangay Ilaya, Las Piñas
City, Metro Manila. After the board of canvassers proclaimed protestee-appellant Rustico Antonio,
protestant-appellee Vicente T. Miranda, Jr. filed an election protest docketed as Election Protest Case
No. 97-0017 against Antonio before the Metropolitan Trial Court of Las Piñas City (Branch LXXIX).
The trial court rendered a Decision dated 9 March 1998, the dispositive portion of which states:

WHEREFORE, the Court declares the protestant Vicente Miranda as the duly elected Barangay
Chairman of Barangay Ilaya, Las Piñas City, Metro Manila.

Antonio admitted receipt of the above-quoted decision on 18 March 1998. Subsequently, Antonio filed
a Notice of Appeal with the trial court on 27 March 1998 or nine (9) days after receipt thereof.
Meanwhile, Miranda moved to execute the trial court's decision. Rustico, in his Opposition to the
Motion for Execution or Execution Pending Appeal, argued against Miranda's motion for execution.
After the trial court denied the motion for execution, the records of this case was forwarded to the
Commission (Second Division).

On 10 August 1998, protestee-appellant Rustico Antonio received from this Commission (Second
Division) an Order dated 3 August 1998 stating as follows:

In the light of the aforequoted rules, protestee RUSTICO ANTONIO, failed to perfect his appeal
within the five (5) days period prescribed for perfecting his appeal, as he filed his Notice of Appeal
only on March 27, 1998 or nine (9) days after receipt of the decision sought to be appealed.

The Period aforestated is jurisdictional and failure of the protestee to perfect his appeal within the
said period deprives the Commission of its appellate jurisdiction.

ACCORDINGLY , the instant appeal is hereby DISMISSED for lack of jurisdiction.

Hence, this motion for reconsideration.

The instant Motion for Reconsideration is DENIED and We AFFIRM the Order dated 3 August 1998
of this Commission (Second Division). 3

In the instant petition for certiorari, petitioner argues that the COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction when it dismissed the appeal for the following reasons:

(a) In barangay electoral protest cases, the period of appeal is ten (10) days from receipt of the
decision of the Metropolitan or Municipal Trial Court. This is provided for by Sec. 9 of R.A. 6679 and
Sec. 252 of the Omnibus Election Code.
(b) The provisions of Sec. 21, Rule 37 of the COMELEC Rules of Procedure providing for a five-day
period within which to appeal from the decision of the Metropolitan or Municipal Trial Court could
not prevail upon the express provisions of Rep. Act No. 6679 and Sec. 252 of the Omnibus Election
Code;

(c) Moreover, the COMELEC committed an error of jurisdiction when it disregarded the provisions of
Sections 5, 6 & 7, Rule 22 of the COMELEC Rules of Procedure requiring the filing of briefs by the
appellant and the appellee. The questioned resolution of August 3, 1998 was issued motu propio and
without prior notice and hearing. The petitioner was fast tracked;

(d) The alleged winning margin of the private respondent over the petitioner as found by the
Metropolitan Trial Court of Las Piñas is only four (4) votes the results being MIRANDA — 1,171;
ANTONIO — 1,167. The people's will must not go on procedural points. "An election protest involves
public interest, and technicalities should not be sanctioned when it will be an obstacle in the
determination of the true will of the electorate in the choice of its public officials." [Macasundig vs.
Macalanagan, 13 SCRA 577; Vda. De Mesa vs. Mensias, 18 SCRA 533, Juliano vs. Court of Appeals, 20
SCRA 808; Genete vs. Archangel, 21 SCRA 1178; Maliwanag vs. Herrera, 25 SCRA 175; De Castro vs.
Genete, 27 SCRA 623]

(e) The questioned resolutions violated the above principle because the COMELEC did not appreciate
the contested ballots. 4

In dismissing the appeal, the COMELEC relied on Section 21, Rule 35 of the COMELEC Ru les of
Procedure which reads:

Sec. 21. Appeal — From any decision rendered by the court, the aggrieved party may appeal to the
Commission on Elections within five (5) days after the promulgation of the decision.

On the other hand, petitioner contends that the period of appeal from decisions of the Municipal Trial
Courts or Metropolitan Trial Courts involving barangay officials is governed by Section 9 of Republic
Act 6679 and Section 252 of the Omnibus Election Code.

Sec. 9 of Republic Act 6679 reads:

Sec. 9. A sworn petition contesting the election of a barangay official may be filed with the proper
municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy
and has been voted for a barangay office within ten (10) days after the proclamation of the results of
the election. The trial court shall decide the election protest within thirty (30) days after the filing
thereof. The decision of the municipal or metropolitan trial court may be appealed within ten (10)
days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide
the issue within thirty (30) days from receipt of the appeal and whose decision on questions of fact
shall be final and non-appealable. For purposes of the barangay elections, no pre-proclamation cases
shall be allowed.

Similarly, Section 252 of the Omnibus Election Code provides:

Sec. 252. Election contest for barangay offices. — A sworn petition contesting the election of a
barangay officer shall be filed with the proper municipal or metropolitan trial court by any candidate
who has duly filed a certificate of candidacy and has been voted for the same office within ten days
after the proclamation of the results of the election. The trial court shall decide the election protest
within fifteen days after the filing thereof. The decision of the municipal or metropolitan trial court
may be appealed within ten days from receipt of a copy thereof by the aggrieved party to the regional
trial court which shall decide the case within thirty days from its submission, and whose decisions
shall be final.

In applying Section 21 of the COMELEC Rules of Procedure rather than Section 9 of Republic Act
6779 and Section 252 of the Omnibus Election Code, the COMELEC rationa lized thus:
Antonio asserts that Section 9 of Republic Act 6679 and Section 252 of the Omnibus Election Code
providing for a ten-day period to appeal prevails over the provisions of the COMELEC Rules of
Procedure. According to Antonio, quasi-judicial bodies, including this Commission, cannot amend an
act of Congress and in case of discrepancy between the basic law and an interpretative or
administrative ruling, the former prevails. Generally, yes. But the situation herein does not fall within
the generic situation contemplated therein.

No less than the 1987 Constitution (Article D X-A, Section 6 and Article IX-C, Section 3) grants and
authorizes this Commission to promulgate its own rules of procedure as long as such rules concerning
pleadings and practice do not diminish, increase or modify substantive rights. Hence, the COMELEC
Rules of Procedure promulgated in 1993 as amended in 1994 is no ordinary interpretative or
administrative ruling. It is promulgated by this Commission pursuant to a constitutionally mandated
authority which no legislative enactment can amend, revise or repeal.

The COMELEC Rules of Procedure (Rule 37 Section 21) provides that from the decision rendered by
the court the aggrieved party may appeal to the Commission on Elections within five (5) days after the
promulgation of the decision. Rule 22 Section 9 (d) of Our Rules of Procedure further provides that an
appeal from decisions of courts in election protest cases may be dismissed at the instance of the
Commission for failure to file the required notice of appeal within the prescribed period.

In case at bar, Antonio filed his notice of appeal before the trial court on the ninth (9) day from receipt
of the decision appealed from or four (4) days after the five-day prescribed period to appeal lapsed.
Therefore, the present appeal must be dismissed. For it is axiomatic that the perfection of an appeal in
the manner and within the period laid down by the COMELEC Rules of Procedure is not only
mandatory but also jurisdictional. As a consequence, the failure to perfect an appeal within the
prescribed period as required by the Rules has the effect of defeating the right of appeal of a party and
precluding the appellate court from acquiring jurisdiction over the case. So the High Court rules in
Villanueva vs. Court of Appeals, et. al. (205 SCRA 537). And so, it should also be in the case at bar.

Worth noting is that Our Rules of Procedure may be amended, revised or repealed pursuant to the
1987 Constitution (Article VIII Section 5[5]) providing that rules of procedure of . . . quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court. But far from being
disapproved the COMELEC Rules of Procedure received approbation and has constantly been cited by
the Supreme Court in a number of decisions such as in the case of Pahilan vs. Tabalba (230 SCRA
205, at 211) and Rodillas vs. Commission on Elections (245 SCRA 702, at 704). In the more recent
case of Calucag vs. Commission on Elections promulgated on 19 June 1997 (G.R. No. 123673), the
Supreme Court stated that:

Therefore, the COMELEC is the proper appellate court clothed with jurisdiction to hear the appeal
WHICH APPEAL MUST BE FILED WITHIN FIVE DAY S AFTER THE PROMULGATION OF THE
MTC DECISION. . . (page 4-5).

The repeated recognition given by the Supreme Court of this five-day rule within which to file the
required notice of appeal will make questionable the legislative enactment providing for a ten-day
period. 5

Without adopting the foregoing ratiocination of the COMELEC, we nonetheless find the instant
petition devoid of merit.

It is beyond cavil that legislative enactments prevail over rules of procedure promulgated by
administrative or quasi-judicial bodies and that rules of procedure should be consistent with standing
legislative enactments. In relation to the above-quoted Section 9 of Republic Act 6679 and Section
252 of the Omnibus Election Code, petitioner points out that in Flores vs. Commission on Elections 6,
this Court had declared that decisions of the Metropolitan or Municipal Court in election protest cases
involving barangay officials are no longer appealable to the Regional Trial Court but to the COMELEC
pursuant to Section 2(2) of Article IX-C of the 1987 Constitution. 7 Petitioner submits that the
dispositive portion in the Flores case only declared unconstitutional that portion of Section 9 of
Republic Act 6679 providing for appeal to the Regional Trial Court but not the ten (10) day period of
appeal. The dispositive portion of the Flores case reads:

1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it provides that
barangay election contests decided by the municipal or metropolitan trial court shall be appealable to
the regional trial court.

Petitioner admits that the provisions in Republic Act No. 6679 and for that matter the Omnibus
Election Code providing for appellate jurisdiction to the Regional Trial Court had been declared
unconstitutional in the aforecited Flores case. A verbatim comparison of both provisions reveals that
they provide the same remedy, that is, appeal from a decision of the municipal or metropolitan trial
court in barangay election cases to the regional trial court. Both provisions provide that (1) results of a
barangay election may be contested by filing a sworn petition with the municipal trial court within ten
days from proclamation; (2) the MTC shall decide within thirty days per Republic Act No. 6679 or
fifteen days per Omnibus Election Code; and (3) the decision of the municipal trial court may be
appealed to the regional trial court within ten days from receipt by the aggrieved party, which decision
is final and non-appealable. There is no appreciable basis to make a distinction between the two
provisions, except for their different numbers, to advance that they provide for two different
remedies. It would be superfluous to insist on a categorical declaration of the unconstitutionality of
the appeal provided for in Sec. 252 of the Omnibus Election Code, as the same appeal in Sec. 9,
Republic Act No. 6679 had already been categorically declared unconstitutional. Furth er, Sec. 252 of
the Omnibus Election Code 8 as amended by the new law, Republic Act No.
6679 9, has in effect, been superseded by the latter. While the appellate procedure has been retained
by the amendatory act, Republic Act No. 6679 nonetheless supersedes the verbatim provision in the
Omnibus Election Code. Hence, it was not necessary for Flores to mention Sec. 252 of the Omnibus
Election Code, considering that as aforestated, Section 9 of Republic Act No. 6679 was a mere
reenactment of the former law.

Petitioner is of the opinion, though, that the unconstitutionality extended only as to which court has
appellate jurisdiction without affecting the period within which to appeal. According to petitioner,
only the portion providing for the appellate jurisdiction of the Regional Trial Court in said cases
should be deemed unconstitutional. The rest of the provisions, particularly on the period to appeal,
free from the taint of unconstitutionality, should remain in force and effect in view of the separability
clauses contained in Republic Act 6779 10 and the Omnibus Election Code. 11

We do not agree.

First, petitioner's argument raises the presumption that the period to appeal can be severed from the
remedy or the appeal itself which is provided in Section 9, Republic Act 6679 and survive on its own.
The presumption cannot be sustained because the period to appeal is an essential characteristic and
wholly dependent on the remedy.

Aptly, the rules on statutory construction prescribe:

The general rule is that where part of a statute is void as repugnant to the Constitution, while another
part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence
of a separability clause in statute creates the presumption that the legislature intended separability,
rather than complete nullity, of the statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the legislature would have enacted it
by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to
make a complete, intelligible, and valid statute, which carries out the legislative intent. The void
provisions must be eliminated without causing results affecting the m ain purpose of the act in a
manner contrary to the intention of the legislature. The language used in the invalid part of the
statute can have no legal effect or efficacy for any purpose whatsoever, and what remains must
express the legislative will independently of the void part, since the court has no power to legislate.

The exception to the general rule is that when the parts of a statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole the nullity of one part will vitiate the
rest. In making the parts of the statute dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole and would not have enacted it if one part
is void, in which case if some parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them. 12

In the instant petition, the exception applies. Section 9 of Republic Act No. 6679 and Section 252 of
the Omnibus Election Code, without the constitutionally infirm portion on the appellate jurisdiction
of Regional Trial Courts in barangay election protest cases, does not remain complete in itself,
sensible, capable of being executed and wholly independent of the portion which was rejected. In
other words, with the elimination of the forum, the period cannot stand on its own. Moreover, when
this Court stated that "Section 9 of Rep. Act No. 6679 is declared unconstitutional insofar as it
provides that barangay election contests decided by the municipal or metropolitan trial court shall be
appealable to the regional trial court", it meant to preserve the first two sentences on the original
jurisdiction of municipal and metropolitan trial courts to try barangay election protests cases but not,
as advanced by the petitioner, the ten-day period to appeal to the Regional Trial Court. This is the
logical and sound interpretation of subject portion of the Flores case.

Second, what was invalidated by the Flores case was the whole appeal itself and not just the question
of which court to file the petition. If the remedy itself is declared unconstitutional how could the
period to appeal possibly survive? How could the time limit exist if there is nothing to be done within
such time?

Third, we cannot indulge in the assumption that Congress still intended, by the said laws, to maintain
the ten (10) day period to appeal despite the declaration of unconstitutionality of the appellate
jurisdiction of the regional trial court, Republic Act No. 7166 13 amending the Omnibus Election
Code, evinces the intent of our lawmakers to expedite the remedial aspect of election controversies.
The law was approved on November 26, 1991, after the Flores case which was promulgated on April
20, 1990, and presumably, the legislature in enacting the same was cognizant of the ruling in Flores.
Said law provides the same five (5) day period to appeal decisions of the trial court in election contests
for municipal officers to the COMELEC. Section 22 thereof reads:

Sec. 22. Election Contests for Municipal Officers. — All election contests involving municipal offices
filed with the Regional Trial Court shall be decided expeditiously. The decision may be appealed to the
Commission within five (5) days from promulgation or receipt of a copy thereof by the aggrieved
party. The Commission shall decide the appeal within sixty (60) days after it is submitted for decision,
but not later than six (6) months after the filing of the appeal, which decision shall be final,
unappealable and executory.

There would be no logic nor reason in ruling that a longer period to appeal to the COMELEC should
apply to election contests for barangay officials.

Fourth, since the whole remedy was invalidated, a void was created. Thus, the COMELEC had to come
in and provide for a new appeal in accordance with the mandate of the Constitution. As correctly
pointed out by the COMELEC, Section 6, Article IX-A 14 of the 1987 Constitution grants and
authorizes the COMELEC to promulgate its own rules of procedure. The 1993 COMELEC Rules of
Procedure have provided a uniform five (5) day period for taking an appeal 15 consistent with the
expeditious resolution of election-related cases. It would be absurd and therefore not clearly intended,
to maintain the 10-day period for barangay election contests. Hence, Section 3, Rule 22 of the
COMELEC Rules of Procedure is not in conflict with any existing law. To adopt a contrary view would
defeat the laudable objective of providing a uniform period of appeal and defy the COMELEC's
constitutional mandate to enact rules of procedure to expedite disposition of election cases.

In view of the Flores case, jurisprudence has consistently recognized that the COMELEC Rules of
Procedure are controlling in election protests heard by a regional trial court. 16 The Court en banc has
held in Rodillas vs.
COMELEC 17 that "the procedure for perfecting an appeal from the decision of the Municipal Trial
Court in a barangay election protest case is set forth in the COMELEC Rules of Procedure." More
recently, in Calucag vs. Commission on Elections 18, the Court en banc had occasion to state that:

It follows that after the promulgation of Flores, the same arguments propounded therein by the
petitioner may no longer be employed. Article 8 of the Civil Code states that "(j)udicial decisions
applying or interpreting the laws or the constitution shall form part of the legal system of the
Philippines." Said pronouncement of the Court, having formed part of the law of the land, ignorance
thereof can no longer be countenanced. Therefore, the COMELEC is the proper appellate court
clothed with jurisdiction to hear the appeal, which appeal must be filed within five days after the
promulgation of the MTC's decision. The erroneous filing of the appeal with the RTC did not toll the
running of the prescriptive period. . . . The five-day period having expired without the aggrieved party
filing the appropriate appeal before the COMELEC, the statutory privilege of petitioner to appeal is
deemed waived and the appealed decisions has become final and executory.

Significantly, Section 5(5), Article VIII of the Constitution provides in part tha t "[r]ules of procedure
of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court."

Equally devoid of merit is the contention that petitioner was fast tracked because the COMELEC did
not require the parties to file their appeal briefs; that the dismissal was issued motu proprio without
prior notice and hearing; and that dismissal of the appeal defeats the people's will on procedural
points. Suffice it to state that the period for filing an appeal is by no means a mere technicality of law
or procedure. It is an essential requirement without which the decision appealed from would become
final and executory as if no appeal was filed at all. The right of appeal is merely a statutory privilege
and may be exercised only in the manner prescribed by, and in accordance with, the provisions of the
law. 19 Further, by virtue of Section 9 (6), Rule 22 of the COMELEC Rules of Procedure which
provides that "an appeal may be dismissed upon motion of either party or at the instance of the
Commission for failure to file a notice of appeal within the prescribed period", the COMELEC is
precisely given the discretion, in a case where the appeal is not filed on time to dismiss the action or
proceeding.

The COMELEC, therefore, did not commit an abuse of discretion in dismissing the appeal.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of merit. The assailed
orders of the Commission on Elections dated August 3, 1998 and October 14, 1998 are hereby
AFFIRMED.

SO ORDERED.

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon
City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner
offensive to petitioner's dignity and personality," contrary to morals, good customs and public
policy."1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to
costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the
civil case was based was culled from a tape recording of the confrontation made by petitioner.2 The
transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka
napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag -aaply ka sa States, nag-aaply
ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin
makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa
Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on you r
own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko
naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito.
"Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako.
Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong
ka.3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of
Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping
and other related violations of private communication, and other purposes." An information charging
petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within
the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being
authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there
willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said
conversation and thereafter communicate in writing the contents of the said recording to other
person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground
that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order
May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts
charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A.
4200 refers to a the taping of a communication by a person other than a participant to the
communication.4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division)
of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the
trial court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of
Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the
conversation. She contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication.8 In relation to this,
petitioner avers that the substance or content of the conversation must be alleged in the Information,
otherwise the facts charged would not constitute a violation of R.A. 4200.9 Finally, petitioner agues
that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and
that consequently, her act of secretly taping her conversation with private respondent was not illegal
under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of
a statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either impossible 11 or
absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by using
a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape
recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by
all the parties to any private communication to secretly record such communication by means of a
tape recorder. The law makes no distinction as to whether the party sought to be penalized by the
statute ought to be a party other than or different from those involved in the private communication.
The statute's intent to penalize all persons unauthorized to make such recording is underscored by the
use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the
knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion
that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape
recording of private conversations or communications taken either by the parties themselves or by
third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to
be material. Now, suppose, Y our Honor, the recording is not made by all the parties but by some
parties and involved not criminal cases that would be mentioned under section 3 but would cover, for
example civil cases or special proceedings whereby a recording is made not necessarily by all the
parties but perhaps by some in an effort to show the intent of the parties because the actuation of the
parties prior, simultaneous even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Y our Honor, that the intention is to cover
it within the purview of this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Y our Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to
be used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without
the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the
purpose; Y our honor, is to record the intention of the parties. I believe that all the parties should
know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people
whose remarks and observations are being made should know that the observations are being
recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his own interest, well, he cannot
complain any more. But if you are going to take a recording of the observations and remarks of a
person without him knowing that it is being taped or recorded, without him knowing that what is
being recorded may be used against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech is
public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by the
respondent court that the provision seeks to penalize even those privy to the private communications.
Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of
the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the ac ts of
secretly overhearing, intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense under Section 1 of
R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of
the conversation, as well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200
does not include "private conversations" narrows the ordinary meaning of the word "com munication"
to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to
share or to impart." In its ordinary signification, communication connotes the act of sharing or
imparting signification, communication connotes the act of sharing or imparting, as in a conversation,
15 or signifies the "process by which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to
include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which
are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and
private respondent, in the privacy of the latter's office. Any doubts about the legislative body's
meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the
terms "conversation" and "communication" were interchangeably used by Senator Tañada in his
Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard.
But this statement ignores the usual nature of conversations as well the undeniable fact that most, if
not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations
are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-
social desires of views not intended to be taken seriously. The right to the privacy of communication,
among others, has expressly been assured by our Constitution. Needless to state here, the framers of
our Constitution must have recognized the nature of conversations between individuals and the
significance of man's spiritual nature, of his feelings and of his intellect. They must have known that
part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of
communication between individuals — free from every unjustifiable intrusion by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200 because a telephone extension devise
was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the
principle that "penal statutes must be construed strictly in favor of the accused."20 The instant case
turns on a different note, because the applicable facts and circumstances pointing to a violation of
R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves
us with no discretion, the instant petition is hereby DENIED. The decision appealed from is
AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. L-30057 January 31, 1984

BRUNO O. APARRI, petitioner,

vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for
REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO,
VALERIANO PLANTILLA and SEVERO YAP, as members of the Board of Directors of
the defunct National Resettlement and Rehabilitation Administration (NARRA),
respondents.

MAKASIAR, J.:

This petition for certiorari seeks to review the decision of the then Court of Appeals (now
Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the
then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as follows:

WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present
petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.).

The facts of the case are as follows:

On January 15, 1960, private respondents (as members of the Board of Directors of the defunct
National Resettlement and Rehabilitation Administration created under Republic Act No. 1160,
approved June 18, 1954 — NARRA) approved the following resolution:

RESOLUTION NO. 13 (Series of 1960)

RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the
National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives
and compensation appurtenant thereto to take effect on January 16, 1960);

RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the
above appointment of Mr. Aparri (p. 2, rec.).

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA
Board, appointed petitioner Bruno O. Aparri as reflected in the following letter:

Manila, January 22, 1960

Mr. Bruno O. Aparri c/o NARRA, Manila

SIR:

Y ou are hereby appointed as GENERAL MANAGER in the National Resettlement and Rehabilitation
Administration (NARRA) with compensation at the rate of TWELVE THOUSAND (P12,000.00)
PESOS per annum the appointment to take effect January 16,1960 . . . . REINSTATEME NT ... (p. 2,
rec.).

The power of the Board of Directors of the NARRA to appoint the general manager is provided for in
paragraph (2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:

Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors shall have the following
powers and duties: ...

2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of the
Office of Economic Coordination and the approval of the President of the Philippines, .... The Board,
by a majority vote of all members, may, for cause, upon recommendation of the Office of Economic
Coordination and with the approval of the President of the Philippines, suspend and/or remove the
General Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied).

On March 15, 1962, the same Board of Directors approved the following resolution:

RESOLUTION NO. 24 (Series of 1962)

WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of the
Office of the President Malacanang, Manila, to fix the term of office of the incumbent General
Manager up to the close of office hours on March 31, 1962, in accordance with the provision of Section
8, sub-section 2 of R.A. No. 1160;

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors hereby
fix, as it is hereby fixed, the term of office of the incumbent General Manager of the National
Resettlement and Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis
supplied).

Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First
Instance of Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA
Board dated March 15, 1962, to command the Board to allow petitioner to continue in office as
General Manager until he vacates said office in accordance with law and to sentence the private
respondents jointly and severally to pay the petitioner actual damages in the sum of P95,000.00, plus
costs.

On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No.
3844, otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the
NARRA (Sec. 73, R.A. 3844) and transferred its functions and powers to the Land Authority. On
October 21, 1963, the then Court of First Instance of Manila rendered judgment, finding "that this
case has become academic by reason of the approval of the Agricultural Land Reform Code (Republic
Act No. 3844) and thereby dismissing the instant petition without pronouncement as to costs" (p. 5,
rec.).
On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice
Antonio C. Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus.
Pertinent provisions of the decision are as follows:
xxx xxx xxx
In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of General
Manager without fixed term and his appointment is, in essence, terminable at the pleasure of the
appointing power which, in this case, is the Board of Directors. Where, as in the case at bar, the
appointing officer, that is, the Board of Directors, had fixed the term of office of the incumbent
Manager to end on March 31, 1962, the replacement of Bruno O. Aparri is not removal but by reason
of the term of his office which is one of the recognized modes of terminating official relations.
Considering that the term of office of the General Manager of the NARRA is not fixed by law nor has it
been fixed by the Board of Directors at the time of his appointment although it had the power to do
so, it is obvious that the term of office of herein petitioner Bruno O. Aparri expired on March 31, 1962
and his right to hold the said office was thereby extinguished. In other words, Bruno O. Aparri
cessation from office invokes no removal but merely the expiration of the term of office which was
within the power of the Board of Directors to fix. Hence, Bruno O. Aparri continues only for so long as
the term of his office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the
Court of Appeals, pp. 48-49, rec., emphasis supplied].

The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10,
1969.

On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then
Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of
merit in a resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on
February 11, 1969, the petition was given due course (p. 66, rec.).

The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962)
was a removal or dismissal of petitioner without cause.

WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.

A public office is the right, authority, and duty created and conferred by law, by which for a given
period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested
with some portion of the sovereign functions of the government, to be exercise by him for the benefit
of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our
political system is therefore not a natural right. It exists, when it exists at all only because and by
virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is
no such thing as a vested interest or an estate in an office, or even an absolute right to hold office.
Excepting constitutional offices which provide for special immunity as regards salary and tenure, no
one can be said to have any vested right in an office or its salary (42 Am. Jur. 881).

The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic
Act No. 1160 (approved June 18,1954), which provides that:

Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION — ... there is

hereby created a corporation to be known as National Resettlement and Rehabilitation
Administration hereafter referred to as "NARRA" to perform under the supervision and control of the
President of the Philippines, through the Office of Economic Coordinator all the duties and functions
of the Bureau of Lands as provided for in Commonwealth Act numbered Six Hundred and Ninety -
one, as amended, and such other duties as are hereinafter specified in this Act. It shall be headed by a
General Manager and an Assistant Manager who shall be appointed as hereinafter provided
(emphasis supplied).

Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA
the power "to appoint and fix the term of office of the general ma nager ... subject to the
recommendation of Economic Coordination and the approval of the President of the Philippines"
(emphasis supplied).

By "appointment" is meant the act of designation by the executive officer, board or body, to whom
that power has been delegated, of the individual who is to exercise the functions of a given office
(Mechem op. cit., Sec. 102). When the power of appointment is absolute, and the appointee has been
determined upon, no further consent or approval is necessary, and the form al evidence of the
appointment, the commission, may issue at once. Where, however, the assent or confirmationof some
other officer or body is required, the Commission can issue or the appointment is complete only when
such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute an "appointment"
to office, there must be some open, unequivocal act of appointment on the part of the appointing
authority empowered to make it, and it may be said that an appointment to office is made and is
complete when the last act required of the appointing authority has been performed (Molnar vs. City
of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete
when the last act required of the appointing power is performed (State vs. Barbour, 53 Conn. 76, 55
Am. Rep. 65).

The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 —
approved on January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out
the fact that the appointment is by itself incomplete because of the lack of approval of the President of
the Philippines to such appointment. Thus, We note that Resolution No. 13 states:

xxx xxx xxx

... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the
above appointment of Mr. Aparri (p. 2, rec.).

Presumably, the Board of Directors of the NARRA expected that such appointment be given approval
by the then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of
R.A. 1160), the appointment of petitioner was not complete. The petitioner can, at best, be classified
as a de facto officer because he assumed office "under color of a known appointment or election, void
because the officer was not eligible or because there was a want of power in the electing body, or by
reasons of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being
unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep. 409).

However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-
approved March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of
office of the petitioner up to the close of office hours on March 31, 1962. The questioned resolution
corrected whatever requisite lacking in the earlier Resolution No. 13 of the respondent Board.
Resolution No. 24, approved by the respondent Board and pursuant to "the desire of the President"
legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of Republic Act
1160.

The word "term" in a legal sense means a fixed and definite period of time which the law describes
that an officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67
CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during which
an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to hold
over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs.
396-397). In the law on Public Officers, the most natural and frequent method by which a public
officer ceases to be such is by the expiration of the term for which he was elected or appointed. The
question of when this event has occurred depends upon a number of considerations, the most
prominent of which, perhaps, are whether he was originally elected or appointed for a definite term or
for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384).

It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate
the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51
Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the
power to fix the term is vested in the Board of Directors subject to the recommendation of th e Office
of Economic Coordination and the approval of the President of the Philippines. Resolution No. 24
(series of 1962) speaks of no removal but an expiration of the term of office of the petitioner. The
statute is undeniably clear. It is the rule in statutory construction that if the words and phrase of a
statute are not obscure or ambiguous, its meaning and the intention of the legislature must be
determined from the language employed, and, where there is no ambiguity in the words, there is no
room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to
the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep. 744).
The reason for the rule is that the legislature must be presumed to know the meaning of words, to
have used words advisedly and to have expressed its intent by the use of such words as are found in
the statute (50 Am. Jur. p. 212).

Removal entails the ouster of an incumbent before the expiration of his term (Manala ng vs.
Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his
term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to
hold such office.

WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS.

SO ORDERED.

G.R. No. 221029 April 24, 2018

REPUBLIC OF THE PHILIPPINES, PETITIONER,
V. MARELYN TANEDO MANALO, RESPONDENT.

*SEE attached document*

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO,

JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE"
SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR.
CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL
DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.

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

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY

GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY -LIST REPRESENTATIVES
NERI J. COLMENARES AND CARLOS ZARATE, GABRI ELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS
PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY -LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY -LIST REPRESENTATIVE
TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA,
JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M.
SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO,
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES
YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE
UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY
FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIP PINES
ON EDCA, Respondents.

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

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,

CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL
PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO
USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND
ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.

DECI SI O N

SERENO, J.:

The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction when they entered into EDCA with the U.S., 2 claiming that the instrument violated
multiple constitutional provisions.3 In reply, respondents argue that petitioners lack standing to bring
the suit. To support the legality of their actions, respondents invoke the 1987 Constitution, treaties,
and judicial precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of
the constitutional powers and roles of the President and the Senate in respect of the above issues. A
more detailed discussion of these powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT:

DEFENSE, FOREIGN RELATIONS, AND EDCA

A. The Prime Duty of the State and the Consolidation of Executive Power in the
President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at

sigasig ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang
Pangulo) ng Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad
ang mga batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa
paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas 5

The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."6 While the vastness of the executive power that has been consolidated in the person of
the President cannot be expressed fully in one provision, the Constitution has stated the prime duty of
the government, of which the President is the head:

The prime duty of the Government is to serve and protect the people. The Government may
call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the Philippines, the power to
call upon the people to defend the State, and the President as Commander-in-Chief

The duty to protect the State and its people must be carried out earnestly and effectively throughout
the whole territory of the Philippines in accordance with the constitutional provision on national
territory. Hence, the President of the Philippines, as the sole repository of executive power, is the
guardian of the Philippine archipelago, including all the islands and waters embraced therein and all
other territories over which it has sovereignty or jurisdiction. These territories consist of its
terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas; and the waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and dimensions. 8

To carry out this important duty, the President is equipped with authority over the Armed Forces of
the Philippines (AFP),9 which is the protector of the people and the state. The AFP's role is to secure
the sovereignty of the State and the integrity of the national territory. 10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty, and property; and
promote the general welfare.11

In recognition of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats 12 and, in the same vein,
ensure that the country is adequately prepared for all national and local emergencies arising from
natural and man-made disasters.13

To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the
AFP to prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the
privilege of the writ of habeas corpus for a period exceeding 60 days, or place the Philippines or any
part thereof under martial law exceeding that same span. In the exercise of these powers, the
President is also duty-bound to submit a report to Congress, in person or in writing, within 48 hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or suspension. The same provision provides for
the Supreme Court's review of the factual basis for the proclamation or suspension, as well as the
promulgation of the decision within 30 days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with other
sovereign states,16 it is but logical that every state must vest in an agent the authority to represent its
interests to those other sovereign states.

The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to ultra -sensitive
military intelligence data. In fine, the presidential role in foreign affairs is domina nt and the President
is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation
lead to breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable consequences. 17

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive
must give paramount importance to the sovereignty of the nation, the integrity of its territory, its
interest, and the right of the sovereign Filipino people to self-determination.18 In specific provisions,
the President's power is also limited, or at least shared, as in Section 2 of Article II on th e conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of
Article XVIII on treaties and international agreements entered into prior to the Constitution and on
the presence of foreign military troops, bases, or facilities.

D. The relationship between the two major presidential functions and the role of the
Senate

Clearly, the power to defend the State and to act as its representative in the international sphere
inheres in the person of the President. This power, however, does not crystallize into absolute
discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, the
Senate has a role in ensuring that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its
members.

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,19 except in instances wherein the President "may enter into international treaties or
agreements as the national welfare and interest may require." 20 This left a large margin of discretion
that the President could use to bypass the Legislature altogether. This was a departure from the 1935
Constitution, which explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate. 21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs. 23

The responsibility of the President when it comes to treaties and international agreements under the
present Constitution is therefore shared with the Senate. This shared role, petitioners claim, is
bypassed by EDCA.

II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the transition to
Philippine independence

The presence of the U.S. military forces in the country can be traced to their pivotal victory in the
1898 Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its sovereignty
over the Philippine Islands in favor of the U.S. upon its formal surrender a few months later. 25 By
1899, the Americans had consolidated a military administration in the archipelago. 26

When it became clear that the American forces intended to impose colonial control over the
Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war against
the U.S.27 The Filipinos were ultimately defeated in the Philippine-American War, which lasted until
1902 and led to the downfall of the first Philippine Republic. 28 The Americans henceforth began to
strengthen their foothold in the country.29 They took over and expanded the former Spanish Naval
Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested
the desire to maintain military bases and armed forces in the country.31 The U.S. Congress later
enacted the Hare-Hawes-Cutting Act of 1933, which required that the proposed constitution of an
independent Philippines recognize the right of the U.S. to maintain the latter's armed forces and
military bases.32 The Philippine Legislature rejected that law, as it also gave the U.S. the power to
unilaterally designate any part of Philippine territory as a permanent military or naval base of the U.S.
within two years from complete independence. 33

The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the
Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law
provided for the surrender to the Commonwealth Government of "all military and other reservations"
of the U.S. government in the Philippines, except "naval reservations and refueling
stations."34 Furthermore, the law authorized the U.S. President to enter into negotiations for the
adjustment and settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence. 35 Under the Tydings-McDuffie Act,
the U.S. President would proclaim the American withdrawal and surrender of sovereignty over the
islands 10 years after the inauguration of the new government in the Philippines.36 This law
eventually led to the promulgation of the 1935 Philippine Constitution.

The original plan to surrender the military bases changed. 37 At the height of the Second World War,
the Philippine and the U.S. Legislatures each passed resolutions authorizing their respective
Presidents to negotiate the matter of retaining military bases in the country after the planned
withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into the Treaty of General
Relations, in which the U.S. relinquished all control and sovereignty over the Philippine
Islands, except the areas that would be covered by the American military bases in the country. 39 This
treaty eventually led to the creation of the post-colonial legal regime on which would hinge the
continued presence of U.S. military forces until 1991: the Military Bases Agreement (MBA) of 1947,
the Military Assistance Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951. 40

B. Former legal regime on the presence of U.S. armed forces in the territory of an
independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries entered into their first
military arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The Senate
concurred on the premise of "mutuality of security interest," 42 which provided for the presence and
operation of 23 U.S. military bases in the Philippines for 99 years or until the year 2046. 43 The treaty
also obliged the Philippines to negotiate with the U.S. to allow the latter to expand the existing bases
or to acquire new ones as military necessity might require. 44

A number of significant amendments to the 1947 MBA were made. 45 With respect to its duration, the
parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from
99 years to a total of 44 years or until 1991. 46 Concerning the number of U.S. military bases in the
country, the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of
17 U.S. military bases covering a total area of 117,075 hectares. 47 Twelve years later, the U.S. returned
Sangley Point in Cavite City through an exchange of notes. 48 Then, through the Romulo-Murphy
Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over Clark
and Subic Bases and the reduction of the areas that could be used by the U.S. military. 49 The
agreement also provided for the mandatory review of the treaty every five years. 50 In 1983, the parties
revised the 1947 MBA through the Romualdez-Armacost Agreement.51 The revision pertained to the
operational use of the military bases by the U.S. government within the context of Philippine
sovereignty,52 including the need for prior consultation with the Philippine government on the former'
s use of the bases for military combat operations or the establishment of long-range missiles.53

Pursuant to the legislative authorization granted under Republic Act No. 9, 54 the President also
entered into the 1947 Military Assistance Agreement 55 with the U.S. This executive agreement
established the conditions under which U.S. military assistance would be granted to the
Philippines,56 particularly the provision of military arms, ammunitions, supplies, equipment, vessels,
services, and training for the latter's defense forces. 57 An exchange of notes in 1953 made it clear that
the agreement would remain in force until terminated by any of the parties. 58

To further strengthen their defense and security relationship, 59 the Philippines and the U.S. next
entered into the MDT in 1951. Concurred in by both the Philippine 60 and the U.S.61 Senates, the treaty
has two main features: first, it allowed for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed attack; 62 and second, it provided for their
mutual self-defense in the event of an armed attack against the territory of either party. 63 The treaty
was premised on their recognition that an armed attack on either of them would equally be a threat to
the security of the other.64

C. Current legal regime on the presence of U.S. armed forces in the country

In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated
for a possible renewal of their defense and security relationship. 65 Termed as the Treaty of Friendship,
Cooperation and Security, the countries sought to recast their military ties by providing a new
framework for their defense cooperation and the use of Philippine installations. 66 One of the proposed
provisions included an arrangement in which U.S. forces would be granted the use of certain
installations within the Philippine naval base in Subic. 67 On 16 September 1991, the Senate rejected
the proposed treaty.68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement
dealing with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-
scale joint military exercises.69 In the meantime, the respective governments of the two countries
agreed70 to hold joint exercises at a substantially reduced level. 71 The military arrangements between
them were revived in 1999 when they concluded the first Visiting Forces Agreement (VFA). 72

As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the country. 74 It contains
provisions on the entry and departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and
exportation of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II),
which in turn regulated the treatment of Philippine military and civilian personnel visiting the
U.S.76 The Philippine Senate concurred in the first VFA on 27 May 1999. 77

Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take
part in joint military exercises with their Filipino counterparts. 78 Called Balikatan, these exercises
involved trainings aimed at simulating joint military maneuvers pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement
to "further the interoperability, readiness, and effectiveness of their respective military forces" 80 in
accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA. 81 The new
agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal
provision of logistics support, supplies, and services between the military forces of the two
countries.82 The phrase "logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services during an approved activity under
the existing military arrangements.83 Already extended twice, the agreement will last until 2017. 84

D. The Enhanced Defense Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary. 85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force in the two countries. 86

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years. 87 After eight rounds of negotiations,
the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement
on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014. 89 The OSG
clarified during the oral arguments90 that the Philippine and the U.S. governments had yet to agree
formally on the specific sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA.
They primarily argue that it should have been in the form of a treaty concurred in by the Senate, not
an executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the parties ordered to
file their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105. 91 The
resolution expresses the "strong sense"92 of the Senators that for EDCA to become valid and effective,
it must first be transmitted to the Senate for deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of
discretion in entering into EDCA in the form of an executive agreement. For this reason, we cull the
issues before us:

A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign

military bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties

IV. DISCUSSION

A. Whether the essential requisites for judicial review have been satisfied

Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating
the Constitution. They stress that our fundamental law is explicit in prohibiting the presence of
foreign military forces in the country, except under a treaty concurred in by the Senate. Before this
Court may begin to analyze the constitutionality or validity of an official act of a coequal branch of
government, however, petitioners must show that they have satisfied all the essential requisites for
judicial review.93

Distinguished from the general notion of judicial power, the power of judicial review specially refers
to both the authority and the duty of this Court to determine whether a branch or an instrumentality
of government has acted beyond the scope of the latter's constitutional powers. 94 As articulated in
Section 1, Article VIII of the Constitution, the power of judicial review involves the power to resolve
cases in which the questions concern the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power: 96

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks
and balances to secure coordination in the workings of the various departments of the government.
x x x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks
the other departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the Constitution.

xxxx

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole,
under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living constitution. x x x. In
our case, this moderating power is granted, if not expressly, by clear implication from section 2 of
article VIII of [the 1935] Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. x x x x. (Emphases supplied)

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has been
attended with grave abuse.97 The expansion of this power has made the political question doctrine "no
longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review." 98

This moderating power, however, must be exercised carefully and only if it cannot be completely
avoided. We stress that our Constitution is so incisively designed that it identifies the spheres of
expertise within which the different branches of government shall function and the questions of policy
that they shall resolve.99 Since the power of judicial review involves the delicate exercise of examining
the validity or constitutionality of an act of a coequal branch of government, this Court must
continually exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally
appointed actor with that of its own. 100

Even as we are left with no recourse but to bare our power to check an act of a coequal branch of
government - in this case the executive - we must abide by the stringent requirements for the exercise
of that power under the Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of judicial review as enunciated in
the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

 2. That rules of constitutional law shall be formulated only as required by the facts of the
case

3. That judgment may not be sustained on some other ground

4. That there be actual injury sustained by the party by reason of the operation of the
statute

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

These are the specific safeguards laid down by the Court when it exercises its power of judicial
review.105 Guided by these pillars, it may invoke the power only when the following four stringent
requirements are satisfied: (a) there is an actual case or controversy; (b) petitioners possess locus
standi; (c) the question of constitutionality is raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota of the case.106 Of these four, the first two conditions will be the focus
of our discussion.

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

The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have
not been deprived of the opportunity to invoke the privileges of the institution they are representing.
It contends that the nonparticipation of the Senators in the present petitions only confirms that even
they believe that EDCA is a binding executive agreement that does not require their concurrence.

It must be emphasized that the Senate has already expressed its position through SR 105. 108 Through
the Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to
participate in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional
role indicates that an actual controversy - albeit brought to the Court by non-Senators, exists.

Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as
basis for finding that there is no actual case or controversy before us. We point out that the focus of
this requirement is the ripeness for adjudication of the matter at hand, as opposed to its being merely
conjectural or anticipatory.109 The case must involve a definite and concrete issue involving real
parties with conflicting legal rights and legal claims admitting of specific relief through a decree
conclusive in nature.110 It should not equate with a mere request for an opinion or advice on what the
law would be upon an abstract, hypothetical, or contingent state of facts. 111 As explained in Angara v.
Electoral Commission: 112

[The] power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and controversies must
reflect the wisdom and justice of the people as expressed through their representatives
in the executive and legislative departments of the government. (Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S. Embassy
that "all internal requirements of the Philippines x x x have already been complied with."113 By this
exchange of diplomatic notes, the Executive Department effectively performed the last act required
under Article XII(l) of EDCA before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the country shall only be allowed
by virtue of a treaty concurred in by the Senate. Hence, the performance of an official act by the
Executive Department that led to the entry into force of an executive agreement was sufficient to
satisfy the actual case or controversy requirement.

2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise
issues involving matters of transcendental importance.
The question of locus standi or legal standing focuses on the determination of whether those assailing
the governmental act have the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and substantial interest in the case, such
that they have sustained or are in immediate danger of sustaining, some direct injury as a
consequence of the enforcement of the challenged governmental act. 115 Here, "interest" in the
question involved must be material - an interest that is in issue and will be affected by the official act -
as distinguished from being merely incidental or general. 116 Clearly, it would be insufficient to show
that the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite
way.117 They must show that they have a particular interest in bringing the suit, and that they have
been or are about to be denied some right or privilege to which they are lawfully entitled, or that they
are about to be subjected to some burden or penalty by reason of the act complained of. 118 The reason
why those who challenge the validity of a law or an international agreement are required to allege the
existence of a personal stake in the outcome of the controversy is "to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."119

The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a
body has the requisite standing, but considering that it has not formally filed a pleading to join the
suit, as it merely conveyed to the Supreme Court its sense that EDCA needs the Senate's concurrence
to be valid, petitioners continue to suffer from lack of standing.

In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the
requirement of having to establish a direct and personal interest if they show that the act affects a
public right.120 In arguing 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 be violated by the enforcement of EDCA. For
their failure to do so, the present petitions cannot be considered by the Court as
citizens' suits that would justify a disregard of the aforementioned requirements.

In claiming that they have legal standing as taxpayers, petitioners 122 aver that the implementation of
EDCA would result in the unlawful use of public funds. They emphasize that Article X(1) refers to an
appropriation of funds; and that the agreement entails a waiver of the payment of taxes, fees, and
rentals. During the oral arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of implementing the
agreement.123 The OSG, on the other hand, maintains that petitioners cannot sue as
taxpayers.124 Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed
at the disbursement of public funds.

A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal
disbursement of public funds derived from taxation.125 Here, those challenging the act must
specifically show that they have sufficient interest in preventing the illegal expenditure of public
money, and that they will sustain a direct injury as a result of the enforcement of the assailed
act.126 Applying that principle to this case, they must establish that EDCA involves the exercise by
Congress of its taxing or spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a
taxpayers' suit contemplates a situation in which there is already an appropriation or a disbursement
of public funds.128 A reading of Article X(l) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated
funds authorized for these purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the disbursement of public
funds, the money must come from appropriated funds that are specifically authorized for this
purpose. Under the agreement, before there can even be a disbursement of public funds, there must
first be a legislative action. Until and unless the Legislature appropriates funds for EDCA,
or unless petitioners can pinpoint a specific item in the current budget that allows
expenditure under the agreement, we cannot at this time rule that there is in fact an
appropriation or a disbursement of funds that would justify the filing of a taxpayers'
suit.

Petitioners Bayan et al. also claim 129 that their co-petitioners who are party-list representatives have
the standing to challenge the act of the Executive Department, especially if it impairs the
constitutional prerogatives, powers, and privileges of their office. While they admit that there is no
incumbent Senator who has taken part in the present petition, they nonetheless assert that they also
stand to sustain a derivative but substantial injury as legislators. They argue that under the
Constitution, legislative power is vested in both the Senate and the House of Representatives;
consequently, it is the entire Legislative Department that has a voice in determining whether or not
the presence of foreign military should be allowed. They maintain that as m embers of the Legislature,
they have the requisite personality to bring a suit, especially when a constitutional issue is raised.

The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the
lack of Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and
international agreements is an "institutional prerogative" granted by the Constitution to the Senate.
Accordingly, the OSG argues that in case of an allegation of impairment of that power, the injured
party would be the Senate as an institution or any of its incumbent members, as it is the Senate's
constitutional function that is allegedly being violated.

The legal standing of an institution of the Legislature or of any of its Members has already been
recognized by this Court in a number of cases. 131 What is in question here is the alleged impairment of
the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of,
the Legislature or an institution thereof. 132 In the case of suits initiated by the legislators themselves,
this Court has recognized their standing to question the validity of any official action that they claim
infringes the prerogatives, powers, and privileges vested by the Constitution in their office.133 As aptly
explained by Justice Perfecto in Mabanag v. Lopez Vito: 134

Being members of Congress, they are even duty bound to see that the latter act within the
bounds of the Constitution which, as representatives of the people, they should uphold,
unless they are to commit a flagrant betrayal of public trust. They a re representatives of the sovereign
people and it is their sacred duty to see to it that the fundamental law embodying the will
of the sovereign people is not trampled upon. (Emphases supplied)

We emphasize that in a legislators' suit, those Members of Congress who are challenging the official
act have standing only to the extent that the alleged violation impinges on their right to participate in
the exercise of the powers of the institution of which they are members. 135 Legislators have the
standing "to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution
in their office and are allowed to sue to question the validity of any official action, which they claim
infringes their prerogatives as legislators."136 As legislators, they must clearly show that there was a
direct injury to their persons or the institution to which they belong. 137

As correctly argued by respondent, the power to concur in a treaty or an international agreement is an

institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature.
In Pimentel v. Office of the Executive Secretary, this Court did not recognize the standing of one of
the petitioners therein who was a member of the House of Representatives. The petition in that case
sought to compel the transmission to the Senate for concurrence of the signed text of the Statute of
the International Criminal Court. Since that petition invoked the power of the Senate to grant or
withhold its concurrence in a treaty entered into by the Executive Department, only then incumbent
Senator Pimentel was allowed to assert that authority of the Senate of which he was a member.

Therefore, none of the initial petitioners in the present controversy has the standing to
maintain the suits as legislators.

Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the
following reasons.

In any case, petitioners raise issues involving matters of transcendental importance.

Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition
tackles issues that are of transcendental importance. They point out tha t the matter before us is about
the proper exercise of the Executive Department's power to enter into international agreements in
relation to that of the Senate to concur in those agreements. They also assert that EDCA would cause
grave injustice, as well as irreparable violation of the Constitution and of the Filipino people's rights.

The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the present
petitions involve matters of transcendental importance in order to cure their inability to comply with
the constitutional requirement of standing. Respondent bewails the overuse of "transcendental
importance" as an exception to the traditional requirements of constitutional litigation. It stresses
that one of the purposes of these requirements is to protect the Supreme Court from unnecessary
litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal
standing, especially when paramount interest is involved. Indeed, when those who challenge the
official act are able to craft an issue of transcendental significance to the people, the Court may
exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of
the petitioners to show that they have been personally injured by the operation of a law or any other
government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that
not every other case, however strong public interest may be, can qualify as an issue of transcendental
importance. Before it can be impelled to brush aside the essential requisites for exercising its power of
judicial review, it must at the very least consider a number of factors: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government; and (3)
the lack of any other party that has a more direct and specific interest in raising the present
questions.141

An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows
that petitioners have presented serious constitutional issues that provide ample justification for the
Court to set aside the rule on standing. The transcendental importance of the issues presented here is
rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a
much stricter mechanism required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that "all internal requirements of
the Philippines x x x have already been complied with." 142 It behooves the Court in this instance to
take a liberal stance towards the rule on standing and to determine forthwith whether there was grave
abuse of discretion on the part of the Executive Department.

We therefore rule that this case is a proper subject for judicial review.

B. Whether the President may enter into an executive agreement on foreign

military bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties

Issues B and C shall be discussed together infra.

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

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the
Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted
with powers categorized as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be exercised except by
the department given the power.144

This divide continued throughout the different versions of the Philippine Constitution and specifically
vested the supreme executive power in the Governor-General of the Philippines,145 a position
inherited by the President of the Philippines when the country attained independence. One of the
principal functions of the supreme executive is the responsibility for the faithful execution of the laws
as embodied by the oath of office. 146 The oath of the President prescribed by the 1987 Constitution
reads thus:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the
Nation. So help me God. (In case of affirmation, last sentence will be omitted.) 147 (Emphases
supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the President,
and not a separate grant of power. 148 Section 1 7, Article VII of the Constitution, expresses this duty in
no uncertain terms and includes it in the provision regarding the President's power of control over the
executive department, viz:

The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require this oath from
the President. In the 1973 Constitution, for instance, the provision simply gives the President control
over the ministries.149 A similar language, not in the form of the President's oath, was present in the
1935 Constitution, particularly in the enumeration of executive functions.150 By 1987, executive power
was codified not only in the Constitution, but also in the Administrative Code: 151

SECTION 1. Power of Control. - The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis
supplied)

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is
intimately related to the other executive functions. These functions include the faithful execution of
the law in autonomous regions; 152 the right to prosecute crimes; 153 the implementation of
transportation projects;154 the duty to ensure compliance with treaties, executive agreements and
executive orders; 155 the authority to deport undesirable aliens; 156 the conferment of national awards
under the President's jurisdiction; 157 and the overall administration and control of the executive
department.158

These obligations are as broad as they sound, for a President cannot function with crippled hands, but
must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted. 159

More important, this mandate is self-executory by virtue of its being inherently executive in
nature.160 As Justice Antonio T. Carpio previously wrote, 161

[i]f the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is not a
delegated legislative power. The most important self-executory constitutional power of the President
is the President's constitutional duty and mandate to "ensure that the laws be faithfully executed."
The rule is that the President can execute the law without any delegation of power from the
legislature.

The import of this characteristic is that the manner of the President's execution of the
law, even if not expressly granted by the law, is justified by necessity and limited only
by law, since the President must "take necessary and proper steps to carry into
execution the law." 162 Justice George Malcolm states this principle in a grand manner: 163

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged.
It is still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be in practice a bad government." The mistakes of State
governments need not be repeated here.

xxxx

Every other consideration to one side, this remains certain - The Congress of the United States clearly
intended that the Governor-General's power should be commensurate with his responsibility. The
Congress never intended that the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the power to do so. The interests
of the Philippines will be best served by strict adherence to the basic principles of constitutional
government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests. It is no coincidence that the constitutional provision on the
faithful execution clause was followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary events of lawless violence, invasion, or
rebellion. And this duty of defending the country is unceasing, even in times when there is no state of
lawlesss violence, invasion, or rebellion. At such times, the President has full powers to ensure the
faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increa sing the military's defensive
capabilities, which could include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting
Opinion as the beginning of a "patent misconception." 165 His dissent argues that this approach taken
in analyzing the President's role as executor of the laws is preceded by the duty to preserve and defend
the Constitution, which was allegedly overlooked. 166

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the
analysis, if read holistically and in context. The concept that the President cannot function with
crippled hands and therefore can disregard the need for Senate concurrence in treaties167 was never
expressed or implied. Rather, the appropriate reading of the preceding analysis shows that the point
being elucidated is the reality that the President's duty to execute the laws and protect the Philippines
is inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued
with both concerns to the full extent of his powers, subject only to the limits supplied by law. In other
words, apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the
manner of execution by the President must be given utmost deference. This approach is not different
from that taken by the Court in situations with fairly similar contexts.

Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how these
limitations are triggered, how these limitations function, and what can be done within the sphere of
constitutional duties and limitations of the President.

Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign
relations power of the President should not be interpreted in isolation. 168 The analysis itself
demonstrates how the foreign affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on
foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops,
bases, or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not
novel to the Court. The President's act of treating EDCA as an executive agreement is not the principal
power being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary analysis is
in reference to the expansive power of foreign affairs. We have long treated this power as something
the Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its na tionals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with
foreign relations."

It is quite apparent that if, in the maintenance of our international relations,

embarrassment - perhaps serious embarrassment - is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time of war.
He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and consequences, sometimes

with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness .... It is also the President who
possesses the most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant
and the President is traditionally accorded a wider degree of discretion in
the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead
to breach of an international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences. 169 (Emphases supplied)

Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.

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

Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987
Constitution expressly limits his ability in instances when it involves the entry of foreign military
bases, troops or facilities. The initial limitation is found in Section 21 of the provisions on the
Executive Department: "No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate." The specific limitation is given
by Section 25 of the Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate
and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article VII. This means that both provisions must be read
as additional limitations to the President's overarching executive function in matters of defense and
foreign relations.

3. The President, however, may enter into an executive agreement on foreign military
bases, troops, or facilities, if (a) it is not the instrument that allows the presence of
foreign military bases, troops, or facilities; or (b) it merely aims to implement an
existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Emphases supplied)

In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty" duly
concurred in by the Senate. They stress that the Constitution is unambigous in mandating the
transmission to the Senate of all international agreements concluded after the expiration of the MBA
in 1991 - agreements that concern the presence of foreign military bases, troops, or facilities in the
country. Accordingly, petitioners maintain that the Executive Department is not given the choice to
conclude agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against
and 2 abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty
for concurrence by at least two-thirds of all its members.

The Senate cites two constitutional provisions (Article VI, Section 21 and Article X VIII, Section 25) to
support its position. Compared with the lone constitutional provision that the Office of the Solicitor
General (OSG) cites, which is Article XVIII, Section 4(2), which includes the constitutionality of
"executive agreement(s)" among the cases subject to the Supreme Court's power of judicial review, the
Constitution clearly requires submission of EDCA to the Senate. Two specific provisions versus one
general provision means that the specific provisions prevail. The term "executive agreem ent" is "a
term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional
mystery."

The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the
MDT, which the Executive claims to be partly implemented through EDCA, is already obsolete.

There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the
comment on interpellation made by Senator Santiago.

First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on

the powers of the President. When the Court validated the concept of "executive agreement," it did so
with full knowledge of the Senate's role in concurring in treaties. It was aware of the problematique of
distinguishing when an international agreement needed Senate concurrence for validity, and when it
did not; and the Court continued to validate the existence of "executive agreements" even after the
1987 Constitution.172 This follows a long line of similar decisions upholding the power of the President
to enter into an executive agreement. 173

Second, the MDT has not been rendered obsolescent, considering that as late as 2009, 174 this Court
continued to recognize its validity.

Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the
conclusion that it applies only to a proposed agreement between our government and a foreign
government, whereby military bases, troops, or facilities of such foreign government would be
"allowed" or would "gain entry" Philippine territory.

Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the
President is not authorized by law to allow foreign military bases, troops, or facilities to enter the
Philippines, except under a treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done
after entry.

Under the principles of constitutional construction, of paramount consideration is the plain meaning
of the language expressed in the Constitution, or the verba legis rule.175 It is presumed that the
provisions have been carefully crafted in order to express the objective it seeks to attain. 176 It is
incumbent upon the Court to refrain from going beyond the plain meaning of the words used in the
Constitution. It is presumed that the framers and the people meant what they said when they said it,
and that this understanding was reflected in the Constitution and understood by the people in the way
it was meant to be understood when the fundamental law was ordained and promulgated. 177 As this
Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus, these are the cases where the need for construction is
reduced to a minimum.178 (Emphases supplied)

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that
further construction must be done to elicit its meaning. 179 In Ang Bagong Bayani-OFW v.
Commission on Elections,180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The proper
interpretation therefore depends more on how it was understood by the people adopting it
than in the framers' understanding thereof. (Emphases supplied)

The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be
allowed in the Philippines" plainly refers to the entry of bases, troops, or facilities in the country.
The Oxford English Dictionary defines the word "allow" as a transitive verb that means "to permit,
enable"; "to give consent to the occurrence of or relax restraint on (an action, event, or activity)"; "to
consent to the presence or attendance of (a person)"; and, when with an adverbial of place, "to permit
(a person or animal) to go, come, or be in, out, near, etc." 181 Black's Law Dictionary defines the term
as one that means "[t]o grant, approve, or permit." 182

The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or
position in space or anything having material extension: Within the limits or bounds of, within (any
place or thing)."183 That something is the Philippines, which is the noun that follows.

It is evident that the constitutional restriction refers solely to the initial entry of the foreign military
bases, troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only to
the limitations provided by the rest of the Constitution and Philippine law, and not to the Section 25
requirement of validity through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v.
Executive Secretary:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word "activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself-such as the one subject of the instant petition, are
indeed authorized.184 (Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign
military troops in the Philippines,185 readily implying the legality of their initial entry into the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely
involves "adjustments in detail" in the implementation of the MDT and the VFA. 186 It points out that
there are existing treaties between the Philippines and the U.S. that have already been concurred in by
the Philippine Senate and have thereby met the requirements of the Constitution under Section 25.
Because of the status of these prior agreements, respondent emphasizes that EDCA need not be
transmitted to the Senate.

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
legis construction to the words of Article XVIII, Section 25. 187 It claims that the provision is "neither
plain, nor that simple."188 To buttress its disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947 MBA. 189 Accordingly, this position requires
questioning the circumstances that led to the historical event, and the meaning of the terms under
Article XVIII, Section 25.

This objection is quite strange. The construction technique of verba legis is not inapplicable just
because a provision has a specific historical context. In fact, every provision of the Constitution has a
specific historical context. The purpose of constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular provision functions. Verba legis is of
paramount consideration, but it is not the only consideration. As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document,
it being essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense they
have in common use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus, these are the cases where the need
for construction is reduced to a minimum.190 (Emphases supplied)

As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase
being construed is "shall not be allowed in the Philippines" and not the preceding one referring to "the
expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities." It is explicit in the
wording of the provision itself that any interpretation goes beyond the text itself and into the
discussion of the framers, the context of the Constitutional Commission's time of drafting, and the
history of the 1947 MBA. Without reference to these factors, a reader would not understand those
terms. However, for the phrase "shall not be allowed in the Philippines," there is no need for such
reference. The law is clear. No less than the Senate understood this when it ratified the VFA.

4. The President may generally enter into executive agreements subject to limitations
defined by the Constitution and may be in furtherance of a treaty already concurred in
by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its
more exacting requirement was introduced because of the previous experience of the country when its
representatives felt compelled to consent to the old MBA. 191 They felt constrained to agree to the MBA
in fulfilment of one of the major conditions for the country to gain independence from the U.S. 192 As a
result of that experience, a second layer of consent for agreements that allow military bases, troops
and facilities in the country is now articulated in Article XVIII of our present Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely ignore
the intent of our constitutional framers when they provided for that additional layer, nor the vigorous
statements of this Court that affirm the continued existence of that class of international agreements
called "executive agreements."

The power of the President to enter into binding executive agreements without Senate concurrence is
already well-established in this jurisdiction.193 That power has been alluded to in our present and past
Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and during the deliberations of
the Constitutional Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the country. 199

As the sole organ of our foreign relations200 and the constitutionally assigned chief architect of our
foreign policy,201 the President is vested with the exclusive power to conduct and manage the
country's interface with other states and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops
diplomatic relations with other states and governments; negotiates and enters into international
agreements; promotes trade, investments, tourism and other economic relations; and settles
international disputes with other states. 202

As previously discussed, this constitutional mandate emanates from the inherent power of the
President to enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence. The existence
of this presidential power203 is so well-entrenched that Section 5(2)(a), Article VIII of the
Constitution, even provides for a check on its exercise. As expressed below, executive agreements are
among those official governmental acts that can be the subject of this Court's power of judicial review:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or

validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question.
(Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as
"international agreements embodying adjustments of detail carry ing out well-established national
policies and traditions and those involving arrangements of a more or less temporary
nature."204 In Bayan Muna v. Romulo, this Court further clarified that executive agreements can
cover a wide array of subjects that have various scopes and purposes. 205 They are no longer limited to
the traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more
complex and the domain of international law wider, as to include such subjects as human
rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement
format would be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:

. . . It would be useless to undertake to discuss here the large variety of executive

agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. . . . They cover such subjects as the inspection of vessels, navigation dues, income tax on
shipping profits, the admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights, etc .... (Emphases
Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence. 206 This distinctive feature was recognized as early as
in Eastern Sea Trading (1961), viz:

Treaties are formal documents which require ratification with the approval of two-thirds of
the Senate. Executive agreements become binding through executive action without the
need of a vote by the Senate or by Congress.

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as commercial
and consular relations, most-favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the settlement of claims. The validity of these
has never been seriously questioned by our courts. (Emphases Supplied)

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated
on whether the general term "international agreement" included executive agreements, and whether
it was necessary to include an express proviso that would exclude executive agreements from the
requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the
Court's ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided
that the term "international agreements" as contemplated in Section 21, Article VII, does not include
executive agreements, and that a proviso is no longer needed. Their discussion is reproduced
below:207

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have
retained the words "international agreement" which I think is the correct judgment on the matter
because an international agreement is different from a treaty. A treaty is a contract between parties
which is in the nature of international agreement and also a municipal law in the sense that the people
are bound. So there is a conceptual difference. However, I would like to be clarified if the
international agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations
stipulate the conditions which are necessary for the agreement or whatever it may be to become valid
or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is
purely proceeding from an executive act which affects external relations independent
of the legislative and the other is an executive act in pursuance of legislative
authorization. The first kind might take the form of just conventions or exchanges of notes
or protocol while the other, which would be pursuant to the legislative authorization, may
be in the nature of commercial agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty

already enforced or to determine the details for the implementation of the treaty . We are
speaking of executive agreements, not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive
agreement which is just protocol or an exchange of notes and this would be in the n ature of
reinforcement of claims of a citizen against a country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the
Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee
explains to us otherwise, an explicit proviso which would except executive agreements from
the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or
international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea
Trading] might help clarify this:

The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history, we have entered into executive agreements covering such subjects as commercial
and consular relations, most favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of this has never been
seriously questioned by our Courts.

Agreements with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International
agreements involving political issues or changes of national policy and those involving
international agreements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements
which need concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially
but which are proceeding from the authorization of Congress. If that is our understanding, then I am
willing to withdraw that amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need
subsequent concurrence by Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Y es. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.

xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that
these executive agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the
implementation of treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be
considered permanent? What would be the measure of permanency? I do not conceive of a treaty that
is going to be forever, so there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should
be included in a provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If
the executive agreement partakes of the nature of a treaty, then it should also be
included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.

MR. GUINGONA: Y es. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore,
that as far as the Committee is concerned, the term "international agreements" does not
include the term "executive agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again
recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the
aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the legal
mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars, 208 executive
agreements merely involve arrangements on the im plementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the details of a treaty; 209 (2) pursuant to or upon
confirmation by an act of the Legislature; 210 or (3) in the exercise of the President's independent
powers under the Constitution.211 The raison d'etre of executive agreements hinges
on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a dom estic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer necessitate
ratification.212 An international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of notes,
statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between a treaty and an international
agreement or even an executive agreement is irrelevant for purposes of determining international
rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional directive.
There remain two very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules.214 In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate215 unlike executive agreements, which are solely
executive actions.216 Because of legislative participation through the Senate, a treaty is regarded as
being on the same level as a statute. 217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective. 219 Both types
of international agreement are nevertheless subject to the supremacy of the Constitution. 220

This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this
power must still be exercised within the context and the parameters set by the Constitution, as well as
by existing domestic and international laws. There are constitutional provisions that restrict or limit
the President's prerogative in concluding international agreements, such as those that involve the
following:

a. The policy of freedom from nuclear weapons within Philippine territory 221

b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts, which must be pursuant to the authority granted by Congress 222

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority
of all the Members of Congress223

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board224

e. The authorization of the presence of foreign military bases, troops, or facilities in the country
must be in the form of a treaty duly concurred in by the Senate. 225

f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required,
should the form of the government chosen be a treaty.

5. The President had the choice to enter into EDCA by way of an executive agreement or
a treaty.

No court can tell the President to desist from choosing an executive agreement over a treaty to
embody an international agreement, unless the case falls squarely within Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional Commission, they were
aware that legally binding international agreements were being entered into by countries in forms
other than a treaty. At the same time, it is clear that they were also keen to preserve the concept of
"executive agreements" and the right of the President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that they understood
the following realities:

1. Treaties, international agreements, and executive agreements are all constitutional

manifestations of the conduct of foreign affairs with their distinct legal characteristics.

a. Treaties are formal contracts between the Philippines and other States-parties, which
are in the nature of international agreements, and also of municipal laws in the sense of
their binding nature.226

b. International agreements are similar instruments, the provisions of which may

require the ratification of a designated number of parties thereto. These agreements
involving political issues or changes in national policy, as well as those involving
international agreements of a permanent character, usually take the form of treaties.
They may also include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by Congress, thus dispensing
with the requirement of concurrence by the Senate.227
 c. Executive agreements are generally intended to implement a treaty already enforced
or to determine the details of the implementation thereof that do not affect the
sovereignty of the State.228

2. Treaties and international agreements that cannot be mere executive agreements must, by
constitutional decree, be concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops, bases,
or facilities - is particularly restricted. The requirements are that it be in the form of a treaty
concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.

4. Thus, executive agreements can continue to exist as a species of international agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional
authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the
form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point,
petitioner submits that the subject of the Agreement does not fall under any of the subject-categories
that xx x may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is
the parties' intent and desire to craft an international agreement in the form they so
wish to further their respective interests. Verily, the matter of form takes a back
seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive
agreement, as the parties in either international agreement each labor under the pacta sunt
servanda principle.

xxxx

But over and above the foregoing considerations is the fact that - save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of,
and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete the ratification process.

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter into
or ratify binding executive agreements has been confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the
President - by ratifying, thru her deputies, the non-surrender agreement - did nothing
more than discharge a constitutional duty and exercise a prerogative that pertains to
her office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and
wider discretion, subject only to the least amount of checks and restrictions under the
Constitution.229 The rationale behind this power and discretion was recognized by the Court
in Vinuya v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of the President when it
stated that the DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases in
which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional
powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is
to determine whether the international agreement is consistent with the applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it merely
involves detail adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In
fact, the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.231 In
that case, the Court was asked to scrutinize the constitutionality of the Terms of Reference of
the Balikatan 02-1 joint military exercises, which sought to implement the VFA. Concluded in the
form of an executive agreement, the Terms of Reference detailed the coverage of the term "activities"
mentioned in the treaty and settled the matters pertaining to the construction of temporary structures
for the U.S. troops during the activities; the duration and location of the exercises; the number of
participants; and the extent of and limitations on the activities of the U.S. forces. The Court upheld
the Terms of Reference as being consistent with the VFA. It no longer took issue with the fact that
the Balikatan Terms of Reference was not in the form of a treaty concurred in by the Senate, even if it
dealt with the regulation of the activities of foreign military forces on Philippine territory.

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an
attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces
member, whose case was pending appeal after his conviction by a trial court for the crime of rape. In
testing the validity of the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of the treaty it purports to
implement. It was eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the
VFA, since the former was squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered the Secretary of Foreign
Affairs to comply with the VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec.
10 of the VFA. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases, troops,
or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and (b) it
must be duly concurred in by the Senate.

2. If the agreement is not covered by the above situation, then the President may choose the
form of the agreement (i.e., either an executive agreement or a treaty), provided that the
agreement dealing with foreign military bases, troops, or facilities is not the principal
agreement that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and standards set
by the law and/or treaty that the former purports to implement; and must not unduly expand
the international obligation expressly mentioned or necessarily implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, a s well as with existing
laws and treaties.

In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws and treaties
concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it remains within the
legal parameters of a valid executive agreement.

7. EDCA is consistent with the content, purpose, and framework of the MDT and the
VFA
The starting point of our analysis is the rule that "an executive agreement xx x may not be used to
amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached
the question of the validity of executive agreements by comparing them with the general framework
and the specific provisions of the treaties they seek to implement.

In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the
framework of the treaty antecedents to which the Philippines bound itself," 235 i.e., the MDT and the
VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles
1 236 and II 237 of the VFA. It later on found that the term "activities" was deliberately left undefined and
ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"238 and thereby allow the parties "a certain leeway in negotiation." 239 The
Court eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.

The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on
custody and detention to ascertain the validity of the Romulo-Kenney Agreement.240 It eventually
found that the two international agreements were not in accord, since the Romulo-Kenney Agreement
had stipulated that U.S. military personnel shall be detained at the U.S. Embassy Compound and
guarded by U.S. military personnel, instead of by Philippine authorities. According to the Court, the
parties "recognized the difference between custody during the trial and detention after
conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides
with U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that
the confinement or detention be "by Philippine authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or
amends the VFA"242 and follows with an enumeration of the differences between EDCA and the VFA.
While these arguments will be rebutted more fully further on, an initial answer can already be given to
each of the concerns raised by his dissent.

The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows
temporary stationing on a rotational basis of U.S. military personnel and their contractors in physical
locations with permanent facilities and pre-positioned military materiel.

This argument does not take into account that these permanent facilities, while built by U.S. forces,
are to be owned by the Philippines once constructed. 243 Even the VFA allowed construction for the
benefit of U.S. forces during their temporary visits.

The second difference stated by the dissent is that EDCA allows the prepositioning of military
materiel, which can include various types of warships, fighter planes, bombers, and vessels, as well as
land and amphibious vehicles and their corresponding ammunition. 244

However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be
brought into the country. Articles VII and VIII of the VFA contemplates that U.S. equipment,
materials, supplies, and other property are imported into or acquired in the Philippines by or on
behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in
connection with activities under the VFA. These provisions likewise provide for the waiver of the
specific duties, taxes, charges, and fees that correspond to these equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the
entry of troops for training exercises, whereas EDCA allows the use of territory for launching military
and paramilitary operations conducted in other states. 245 The dissent of Justice Teresita J. Leonardo-
De Castro also notes that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA. 246

This Court's jurisprudence however established in no uncertain terms that combat-related activities,
as opposed to actual combat, were allowed under the MDT and VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities as opposed to combat itself such as the one subject of the instant petition,
are indeed authorized.247

Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent
of the VFA since EDCA's combat-related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and
EDCA deal with the presence of U.S. forces within the Philippines, but make no mention of being
platforms for activity beyond Philippine territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the future the scope of judicial review does not
cover potential breaches of discretion but only actual occurrences or blatantly illegal provisions.
Hence, we cannot invalidate EDCA on the basis of the potentially abusive use of its provisions.

The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA
or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248

As previously mentioned, these points shall be addressed fully and individually in the latter analysis
of EDCA's provisions. However, it must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily expressed word-for-word in the mother
treaty. This concern shall be further elucidated in this Decision.

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions
that may be construed as a restriction on or modification of obligations found in existing statues,
including the jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that
EDCA contains such restrictions or modifications. 249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and
EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements, with the
exception of those outlined by the VFA in Articles III -VI. In the VFA, taxes are clearly waived whereas
in EDCA, taxes are assumed by the government as will be discussed later on. This fact does not,
therefore, produce a diminution of jurisdiction on the part of the Philippines, but rather a recognition
of sovereignty and the rights that attend it, some of which may be waived as in the cases under
Articles III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and
the VFA, which are the two treaties from which EDCA allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1)
U.S. personnel and (2) U.S. contractors

The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains
that EDCA articulates the principle of defensive preparation embodied in Article II of the MDT; and
seeks to enhance the defensive, strategic, and technological capabilities of both parties pursuant to the
objective of the treaty to strengthen those capabilities to prevent or resist a possible armed attack.
Respondent also points out that EDCA simply implements Article I of the VFA, which already allows
the entry of U.S. troops and personnel into the country. Respondent stresses this Court's recognition
in Lim v. Executive Secretary that U.S. troops and personnel are authorized to conduct activities that
promote the goal of maintaining and developing their defense capability.

Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT.
According to them, the treaty does not specifically authorize the entry of U.S. troops in the country in
order to maintain and develop the individual and collective capacities of both the Philippines and the
U.S. to resist an armed attack. They emphasize that the treaty was concluded at a time when there was
as yet no specific constitutional prohibition on the presence of foreign military forces in the country.

Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the
specific purpose of combined military exercises with their Filipino counterparts. They stress that, in
contrast, U.S. troops are allowed under EDCA to perform activities beyond combined military
exercises, such as those enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some
degree of permanence in the presence of U.S. troops in the country, since the effectivity of EDCA is
continuous until terminated. They proceed to argue that while troops have a "rotational" presence,
this scheme in fact fosters their permanent presence.

a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed
under the VFA

We shall first deal with the recognition under EDCA of the presence in the country of three distinct
classes of individuals who will be conducting different types of activities within the Agreed Locations:
(1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers
to them as follows:
"United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities approved by the
Philippines, as those terms are defined in the VFA.252

"United States forces" means the entity comprising United States personnel and all property,
equipment, and materiel of the United States Armed Forces present in the territory of the
Philippines.253

"United States contractors" means companies and firms, and their employees, under
contract or subcontract to or on behalf of the United States Department of Defense. United States
contractors are not included as part of the definition of United States personnel in this
Agreement, including within the context of the VFA. 254

United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited, awarded, and administered in
accordance with the laws and regulations of the United States. 255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal
with the entry into the country of U.S. personnel and contractors per se. While Articles
I(l)(b) 256 and II(4) 257 speak of "the right to access and use" the Agreed Locations, their wordings
indicate the presumption that these groups have already been allowed entry into Philippine territory,
for which, unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply
alludes to the VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:

As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government. Within this definition:

1. The term "military personnel" refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.

2. The term "civilian personnel" refers to individuals who are neither nationals
of nor ordinarily resident in the Philippines and who are employed by the
United States armed forces or who are accompanying the United States
armed forces, such as employees of the American Red Cross and the United
Services Organization.258

Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:

1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered by
this agreement.

2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.

3. The following documents only, which shall be required in respect of United States military
personnel who enter the Philippines; xx xx.

4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
(Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian
personnel to be "temporarily in the Philippines," so long as their presence is "in connection with
activities approved by the Philippine Government." The Philippines, through Article III, even
guarantees that it shall facilitate the admission of U.S. personnel into the country and grant
exemptions from passport and visa regulations. The VFA does not even limit their temporary
presence to specific locations.

Based on the above provisions, the admission and presence of U.S. military and civilian
personnel in Philippine territory are already allowed under the VFA, the treaty
supposedly being implemented by EDCA. What EDCA has effectively done, in fact, is merely
provide the mechanism to identify the locations in which U.S. personnel may perform allowed
activities pursuant to the VFA. As the implementing agreement, it regulates and limits the presence of
U.S. personnel in the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory;
their entry must be sourced from extraneous Philippine statutes and regulations for the admission
of alien employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This
does not mean, though, that the recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate concurrence before they are allowed to enter
the country.

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles
III and IV, in fact, merely grant them the right of access to, and the authority to conduct certain
activities within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S.
contractors from the coverage of the VFA, they shall not be granted the same entry accommodations
and privileges as those enjoyed by U.S. military and civilian personnel under the VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is
"a matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are accorded entry
accommodations, U.S. contractors are subject to Philippine immigration laws. 261 The latter must
comply with our visa and passport regulations262 and prove that they are not subject to exclusion
under any provision of Philippine immigration laws.263 The President may also deny them entry
pursuant to his absolute and unqualified power to prohibit or prevent the admission of aliens whose
presence in the country would be inimical to public interest. 264

In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors265 as may be necessitated by national security, public safety, public health, public morals,
and national interest.266 They may also be deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article 111(5)
of the VFA requires a request for removal from the Philippine government before a member of the
U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the
activities in which U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

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

Article III

The Parties, through their Foreign Ministers or their deputies, will consult together from
time to time regarding the implementation of this Treaty and whenever in the opinion of either
of them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the Republic of
the Philippines;

Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;

xxx

Article I - Definitions

As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government. Within this definition: xx x

Article II - Respect for Law

It is the duty of United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.

Article VII - Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United States,
which may remove such property from the Philippines at any time, free from export duties, taxes, and
other similar charges. x x x.

Article VIII - Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures stipulated
in implementing arrangements.

2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary. x x x (Emphases Supplied)

Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these implementing arrangements and activities, we
referred to the content, purpose, and framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military
trainings, maneuvers, and exercises. Both the interpretation 269 and the subsequent practice270 of the
parties show that the MDT independently allows joint military exercises in the country. Lim v.
Executive Secretary 271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are
activities that seek to enhance and develop the strategic and technological capabilities of the parties to
resist an armed attack, "fall squarely under the provisions of the RP-US MDT."273 In Lim, the Court
especially noted that the Philippines and the U.S. continued to conduct joint military exercises even
after the expiration of the MBA and even before the conclusion of the VFA. 274 These activities
presumably related to the Status of Forces Agreement, in which the parties agreed on the status to be
accorded to U.S. military and civilian personnel while conducting activities in the Philippines in
relation to the MDT.275

Further, it can be logically inferred from Article V of the MDT that these joint activities may be
conducted on Philippine or on U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan territory of either of the Parties, or on
the island territories under its jurisdiction in the Pacific or on its armed forces, public
vessels or aircraft in the Pacific." Surely, in maintaining and developing our defense capabilities,
an assessment or training will need to be performed, separately and jointly by self-help and mutual
aid, in the territories of the contracting parties. It is reasonable to conclude that the assessment of
defense capabilities would entail understanding the terrain, wind flow patterns, and other
environmental factors unique to the Philippines.

It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable
areas would be part of the training of the parties to maintain and develop their capacity to resist an
actual armed attack and to test and validate the defense plan of the Philippines. It is likewise
reasonable to imagine that part of the training would involve an analysis of the effect of the weapons
that may be used and how to be prepared for the eventuality. This Court recognizes that all of this may
require training in the area where an armed attack might be directed at the Philippine territory.

The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the
Philippines is "in connection with activities approved by the Philippine Government." While the treaty
does not expressly enumerate or detail the nature of activities of U.S. troops in the country, its
Preamble makes explicit references to the reaffirmation of the obligations of both countries under the
MDT. These obligations include the strengthening of international and regional security in the Pacific
area and the promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by
the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to
afford the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel. 276 In
ruling that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the
treaty, this Court explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
of the word "activities" arose from accident. In our view, it was deliberately made that way
to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military . As conceived, the joint
exercises may include training on new techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical and humanitarian
missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA
support the conclusion that combat-related activities - as opposed to combat itself- such as the one
subject of the instant petition, are indeed authorized. (Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national defense and security
further explains the wide range and variety of activities contemplated in the VFA, and how these
activities shall be identified: 277

These joint exercises envisioned in the VFA are not limited to combat-related activities; they
have a wide range and variety. They include exercises that will reinforce the AFP's ability
to acquire new techniques of patrol and surveillance to protect the country's maritime
resources; sea-search and rescue operations to assist ships in distress; and disaster-relief
operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons and tidal
waves.

xxxx

Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and
equipment repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual
Defense Board. It is at the level of the Mutual Defense Board-which is headed jointly by the
Chief of Staff of the AFP and the Commander in Chief of the U.S. Pacific Command-that the VFA
exercises are planned. Final approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will be
conducted between the armed forces of the U.S. and the Philippines. The VFA regulates and
provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related activities.
(Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the Senate
committees on foreign relations and on national defense and security, and the ruling of
this Court in Lim is that the "activities" referred to in the treaty are meant to be
specified and identified infurther agreements. EDCA is one such agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel
referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform "activities
approved by the Philippines, as those terms are defined in the VFA"278 and clarifies that these
activities include those conducted within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and
disaster relief activities; and such other activities as may be agreed upon by the Parties 279

2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and materiel; deployment of forces and
materiel; and such other activities as the Parties may agree 280

3. Exercise of operational control over the Agreed Locations for construction activities and other types
of activity, including alterations and improvements thereof 281

4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their
operational control or defense, including the adoption of apfropriate measures to protect U.S. forces
and contractors282

5. Use of water, electricity, and other public utilities283

6. Operation of their own telecommunication systems, including the utilization of such means and
services as are required to ensure the full ability to operate telecommunication systems, as well as the
use of the necessary radio spectrum allocated for this purpose 284

According to Article I of EDCA, one of the purposes of these activities is to maintain and develop,
jointly and by mutual aid, the individual and collective capacities of both countries to resist an armed
attack. It further states that the activities are in furtherance of the MDT and within the context of the
VFA.

We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform
the following: (a) participate in training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their respective resou rces, equipment and
other assets; and (e) exercise their right to self-defense. We quote the relevant portion of the Terms
and Conditions as follows: 286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as
those for troop billeting, classroom instruction and messing may be set up for use by RP
and US Forces during the Exercise.

The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of
the Chief of Staff, AFP. In no instance will US Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders will retain command over their respective
forces under the overall authority of the Exercise Co-Directors. RP and US participants
shall comply with operational instructions of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct
the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six
month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of
Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of the Exercise.

xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.

These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising
and training of RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.

2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we
find that EDCA has remained within the parameters set in these two treaties. Just like the Terms of
Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be
in the form of executive agreements.

Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with
the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of
EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and
Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas
EDCA allows an unlimited period for U.S. forces to stay in the Philippines. 288

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this
method does not create a permanent obligation.

Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA
does not include a maximum time limit with respect to the presence of U.S. personnel in the country.
We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate
in the entire text of the VFA as an implicit grant to the President of a margin of appreciation in
determining the duration of the "temporary" presence of U.S. personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.289 However, this argument has not taken root by virtue of a simple glance at its provisions on
the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access
to facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to facilities of the
Armed Forces of the Philippines – but not permanent bases which are prohibited under the
Philippine Constitution - with the result of reducing response time should an external threat from a
common adversary crystallize.290

EDCA is far from being permanent in nature compared to the practice of states as shown in other
defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense agreement
provides the following:

This Agreement is concluded for an indefinite period and shall enter into force in accordance
with the internal laws of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be terminated by
written notification by either Party and in that event it terminates 2 years after the receipt of the
notification. (emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I -VIII, and Annexes A and B, shall
become effective on the date of the last signature affixed below and shall remain in force until
terminated by the Parties, provided that it may be terminated by either Party upon 180 days
written notice of its intention to do so to the other Party. (emphasis supplied)

On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer
initial term:

3. This Agreement shall have an initial term of 25 years and thereafter shall continue in
force, but may be terminated by either Party at any time upon one year's written notice to the other
Party through diplomatic channels. (emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of
that is provided in the latter agreement. This means that EDCA merely follows the practice of other
states in not specifying a non-extendible maximum term. This practice, however, does not
automatically grant a badge of permanency to its terms. Article XII(4) of EDCA provides very clearly,
in fact, that its effectivity is for an initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply illogical to conclude that the initial,
extendible term of 10 years somehow gives EDCA provisions a permanent character.

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty -
bound to defend our national sovereignty and territorial integrity; 291 who, as chief architect of our
foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security
and interests; 292 who holds the most comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who has unrestricted access to
highly classified military intelligence data 294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer
period of military training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.

Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the
President may not always be able to candidly and openly discuss the complete situation being faced by
the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls for
crafting programs and setting timelines for approved activities. These activities may be necessary for
maintaining and developing our capacity to resist an armed attack, ensuring our national sovereignty
and territorial integrity, and securing our national interests. If the Senate decides that the President is
in the best position to define in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy decision. If the Senate
feels that there is no need to set a time limit to these visits, neither should we.

Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary"
nature of the visits of U.S. personnel does not suggest that the duration to which the President may
agree is unlimited. Instead, the boundaries of the meaning of the term temporary in Article I of the
treaty must be measured depending on the purpose of each visit or activity.295 That purpose must be
analyzed on a case-by-case basis depending on the factual circumstances surrounding the conclusion
of the implementing agreement. While the validity of the President's actions will be judged under less
stringent standards, the power of this Court to determine whether there was grave abuse of discretion
remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were
legitimately permitted to enter the country independent of EDCA - are subject to relevant Philippine
statutes and regulations and must be consistent with the MDT and the VFA

Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private
security contractors in other countries. They claim that these contractors - one of which has already
been operating in Mindanao since 2004 - have been implicated in incidents or scandals in other parts
of the globe involving rendition, torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they are operating.

Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following
activities:

1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel; deployment
of forces and materiel; and such other activities as the Parties may agree 297

2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such equipment, supplies and
materiel298

3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws,
regulations, and policies299

EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This
means that certain privileges denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security 300 and carrying, owning, and possessing firearms301 are illegal for
foreign civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign
Investment Negative list,302 the Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that
cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487; 303 and No. 15, which
regulates contracts for the construction of defense-related structures based on Commonwealth Act
No. 541.

Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate
and civil requirements imposed by the law, depending on the entity's corporate structure and the
nature of its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S.
contractors has been clear even to some of the present members of the Senate.

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the
waters off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on
Environment and Natural Resources chairperson claimed environmental and procedural violations by
the contractor.305 The U.S. Navy investigated the contractor and promised stricter guidelines to be
imposed upon its contractors.306 The statement attributed to Commander Ron Steiner of the public
affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws - is
of particular relevance. The statement acknowledges not just the presence of the contractors, but also
the U.S. position that these contractors are bound by the local laws of their host state. This stance was
echoed by other U.S. Navy representatives. 307

This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the
purpose of fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all, even to
the U.S.

As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their
activities must be consistent with Philippine laws and regulations and pursuant to the MDT and the
VFA.
While we recognize the concerns of petitioners, they do not give the Court enough justification to
strike down EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take
judicial notice of claims aired in news reports, "not because of any issue as to their truth, accuracy, or
impartiality, but for the simple reason that facts must be established in accordance with the rules of
evidence."308 What is more, we cannot move one step ahead and speculate that the alleged illegal
activities of these contractors in other countries would take place in the Philippines with certainty. As
can be seen from the above discussion, making sure that U.S. contractors comply with Philippine laws
is a function of law enforcement. EDCA does not stand in the way of law enforcement.

Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the
VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and treaties
applicable within the Philippine territory. They may be refused entry or expelled from the country if
they engage in illegal or undesirable activities. There is nothing that prevents them from being
detained in the country or being subject to the jurisdiction of our courts. Our penal laws, 309 labor
laws,310 and immigrations laws311 apply to them and therefore limit their activities here. Until and
unless there is another law or treaty that specifically deals with their entry and activities, their
presence in the country is subject to unqualified Philippine jurisdiction.

EDCA does not allow the presence of U.S.-owned or -controlled military facilities and
bases in the Philippines

Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through
the "euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article
II(4) of EDCA, they point out that these locations are actually military bases, as the definition refers to
facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners
claim that there are several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are no longer needed
by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4) ofEDCA talks
about American forces' unimpeded access to the Agreed Locations for all matters relating to the
prepositioning and storage of U.S. military equipment, supplies, and materiel. Third, Article VII of
EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications
system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-

called "badges of exclusivity," despite the presence of contrary provisions within the text of the
agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is
within the context of a lengthy provision. The provision as a whole reads as follows:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof,
including non-relocatable structures and assemblies constructed, modified, or improved by the
United States, once no longer required by United States forces for activities under this Agreement.
The Parties or the Designated Authorities shall consult regarding the terms of return of any Agreed
Locations, including possible compensation for improvements or construction.

The context of use is "required by United States forces for activities under this Agreement." Therefore,
the return of an Agreed Location would be within the parameters of an activity that the Mutual
Defense Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus, possession
by the U.S. prior to its return of the Agreed Location would be based on the authority given to it by a
joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with representatives
from the Philippines' Department of National Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the Philippines and the U.S., or through their
Designated Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the
return as a "badge of exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA in
full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article
IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations
for all matters relating to the prepositioning and storage of defense equipment, supplies, and
materiel, including delivery, management, inspection, use, maintenance, and removal of such
equipment, supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in
these equipment, supplies, and materiel through the MDB and SEB security mechanism. These items
are owned by the U.S.,314 are exclusively for the use of the U.S.315 and, after going through the joint
consent mechanisms of the MDB and the SEB, are within the control of the U.S. 316 More importantly,
before these items are considered prepositioned, they must have gone through the process of prior
authorization by the MDB and the SEB and given proper notification to the AFP.317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership,
use, and control of the U.S. over its own equipment, supplies, and materiel and must have first been
allowed by the joint mechanisms in play between the two states since the time of the MDT and the
VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere access to items in
order to exercise the rights of ownership granted by virtue of the Philippine Civil Code. 318

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow
similar activities within the area; (b) provide for the same "species of ownership" over facilities; and
(c) grant operational control over the entire area. Finally, they argue 320 that EDCA is in fact an
implementation of the new defense policy of the U.S. According to them, this policy was not what was
originally intended either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed Locations specifically for
construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy,
garrison, and control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of
every activity, including construction, by giving the MDB and the SEB the power to determine the
details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines. 323 On the other hand, for movable properties brought into
the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the
MBA dictates that the U.S. retains ownership over immovable and movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the
Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable
property full rights over that property, even if located in another person's property. 324

The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility. 325 Under EDCA, an
immovable is owned by the Philippines, even if built completely on the back of U.S. funding. 326 This is
consistent with the constitutional prohibition on foreign land ownership. 327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that mu st be
considered before the constitutional restriction is violated. Thus, petitioners' points on operational
control will be given more attention in the discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that
would allay suspicion that EDCA is but a disguised version of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to
do under the 1947 MBA

The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under
EDCA for a number of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over any
part of the Philippines in which its forces or equipment may be found. Below is a comparative table
between the old treaty and EDCA:

1947 MBA/ 1946 Treaty EDCA

of General Relations
1947 MBA, Art. I(1): EDCA, preamble:

The Government of the Affirming that the Parties

Republic of share an understanding for
the Philippines (hereinafter the United States not to
referred to as the establish a permanent
Philippines) grants to the military presence or base
Government of the United in the territory of the
States of America Philippines;
(hereinafter referred to as
the United States) the right xxxx
to retain the use of the
bases in the Recognizing that all United
Philippines listed in Annex States access to and use of
A attached hereto. facilities and areas will be at
the invitation of the
1947 MBA, Art. XVII(2): Philippines and with full
respect for the Philippine
All buildings and Constitution and
structures which Philippine laws;
are erected by the United
States in the bases shall be x x x x
the property of the
United States and may be EDCA, Art. II(4):
removed by it before the
expiration of this Agreement "Agreed
or the earlier relinquishment Locations" means facilities
of the base on which the and areas that
structures are situated. There are provided by the
shall be no obligation on the Government of the
part of the Philippines or of Philippines through the AFP
the United States to rebuild and that United States forces,
or repair any destruction or United States contractors, and
damage inflicted from any others as mutually agreed,
cause whatsoever on any of shall have the right to access
the said buildings or and use pursuant to this
structures owned or used by Agreement. Such Agreed
the United States in the Locations may be listed in an
bases. x x x x. annex to be appended to this
Agreement, and may be
1946 Treaty of Gen. further described in
Relations, Art. I: implementing arrangements.

The United States of EDCA, Art. V:

America agrees to withdraw
and surrender, and does 1.
hereby withdraw and The Philippines shall retain
surrender, all rights of ownership of and title to
possession, supervision, Agreed Locations.
jurisdiction, control or
sovereignty existing and xxxx
exercised by the United
States of America in and 4. All buildings, non-
over the territory and the relocatable structures,
people of the Philippine and assemblies affixed to
Islands, except the use of the land in the Agreed
such bases, necessary Locations, including ones
appurtenances to such altered or improved by
bases, and the rights United States forces, remain
incident thereto, as the the property of the
 United States of America, by Philippines. Permanent
agreement with the Republic buildings constructed by
of the Philippines may deem United States forces become
necessary to retain for the the property of the
mutual protection of the Philippines, once constructed,
Republic of the Philippines but shall be used by United
and of the United States of States forces until no longer
America. x x x. required by United States
forces.

Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when
it came to deciding whether to expand or to increase the number of bases, as the Philippines may be
compelled to negotiate with the U.S. the moment the latter requested an expansion of the existing
bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the
Philippines.

1947 MBA/ 1946 EDCA

Treaty of General
Relations
1947 MBA, Art.I(3): EDCA, preamble:

The Philippines agree Recognizing that all United

to enter into States access to and use of
negotiations with the facilities and areas will be at
United States at the the invitation of the
latter's request, to Philippines and with full
permit the United respect for the Philippine
States to expand such Constitution and
bases, to exchange such Philippine laws;
bases for other bases, to
acquire additional xxxx
bases, or relinquish
rights to bases, as any of EDCA. Art. II(4):
such exigencies may be
required by military "Agreed
necessity. Locations" means facilities
and areas that
1946 Treaty of Gen. are provided by the
Relations, Art. I: Government of the
Philippines through the
The United States of AFP and that United States
America agrees to forces, United States
withdraw and contractors, and others as
surrender, and does mutually agreed, shall have
hereby withdraw and the right to access and use
surrender, all rights of pursuant to this Agreement.
possession, Such Agreed Locations may
supervision, be listed in an annex to be
jurisdiction, control appended to this Agreement,
or and may be further described
sovereignty existing in implementing
and exercised by the arrangements.
United States of
America in and over
the territory and the
people of the
Philippine
Islands, except the
use of such
bases, necessary
appurtenances to such
bases, and the rights
 incident thereto, as the
United States of
America, by
agreement with the
Republic of the
Philippines may
deem necessary to
retain for the mutual
protection of the
Republic of the
Philippines and of the
United States of
America. x x x.

Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations.
On the other hand, given that the U.S. had complete control over its military bases under the 1947
MBA, the treaty did not provide for any express recognition of the right of access of Philippine
authorities. Without that provision and in light of the retention of U.S. sovereignty over the old
military bases, the U.S. could effectively prevent Philippine authorities from entering those bases.

1947 MBA EDCA

No equivalent provision. EDCA, Art. III(5):

The Philippine
Designated Authority
and its authorized
representative shall have
access to the entire area
of the Agreed Locations.
Such access shall be
provided promptly
consistent with operational
safety and security
requirements in accordance
with agreed procedures
developed by the Parties.

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits of territorial
waters and air space adjacent to or in the vicinity of those bases. The only standard used in
determining the extent of its control was military necessity. On the other hand, there is no such grant
of power or authority under EDCA. It merely allows the U.S. to exercise operational control over the
construction of Philippine-owned structures and facilities:

1947 MBA EDCA

1947 MBA, EDCA, Art. III(4):
Art.I(2):
The Philippines hereby grants to the
The Philippines United States, through bilateral
agrees security mechanisms, such as the
to permit the MDB and SEB, operational
United States, control of Agreed
upon notice to Locations for construction
the Philippines, activities and authority to undertake
to use such of such activities on, and make
those alterations and improvements to, Agreed
bases listed in Locations. United States forces shall
Annex B as the consult on issues regarding such
United States construction, alterations, and
determines to improvements based on the Parties'
be required by shared intent that the technical
military requirements and construction standards
of any such projects undertaken by or on
 necessity. behalf of United States forces should be
consistent with the requirements and
1947 MBA, standards of both Parties.
Art. III(1):

It is mutually
agreed that
the United
States shall
have the rights,
power and
authority
within the
bases which
are necessary
for the
establishment,
use, operation
and defense
thereof or
appropriate
for the control
thereof and all
the rights, power
and
authority within
the limits of
territorial
waters and air
space adjacent
to, or in the
vicinity of, the
bases which
are necessary
to provide
access to
them, or
appropriate for
their control.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for
additional staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen
below:

1947 MBA EDCA

1947 MBA, EDCA, Art. III(1):
Art. VI:
With consideration of the views of
The United the Parties,
States shall, the Philippines hereby authorizes and
subject to agrees that United States forces, United
previous States contractors, and vehicles, vessels,
agreement with and aircraft operated by or for United
the States forces may conduct the following
Philippines, activities with respect to Agreed
have the right Locations: training; transit; support and
to use land related activities; refueling of aircraft;
and coastal bunkering of vessels; temporary
sea areas of maintenance of vehicles, vessels, and
appropriate aircraft; temporary accommodation of
size and personnel; communications;
location for prepositioning of equipment, supplies,
periodic and materiel; deploying forces and
maneuvers, for materiel; and such other activities as the
 additional Parties may agree.
staging
areas,
bombing and
gunnery
ranges, and
for such
intermediate
airfields as
may be
required for
safe and
efficient air
operations.
Operations in
such areas
shall be carried
on with due
regard and
safeguards for
the public
safety.

1947 MBA,
Art.I(2):

The
Philippines
agrees
to permit the
United
States, upon
notice to the
Philippines,
to use such of
those
bases listed in
Annex B as
the United
States
determines
to be
required by
military
necessity.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not
have any right, power, or authority to do so under EDCA.

1947 MBA EDCA

1947 MBA, Art. 111(2)(c) No equivalent provision.

Such rights, power and

authority shall
include, inter
alia, the right, power
and authority: x x x x to
control (including the
right to prohibit) in so
far as may be required for
the efficient operation and
safety of the bases, and
within the limits of
 military
necessity, anchorages,
moorings, landings,
takeoffs, movements
and operation of ships
and water-borne craft,
aircraft and other
vehicles on water, in
the air or on land
comprising

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including
roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and
deepen the harbors, channels, entrances, and anchorages; and to construct or maintain necessary
roads and bridges that would afford it access to its military bases.

1947 MBA EDCA

1947 MBA, Art. EDCA, Art. III(2):
III(2)(b):
When requested, the
Such rights, power and Designated Authority of
authority shall the Philippines shall assist
include, inter in facilitating transit or
alia, the right, power temporary access by
and authority: x x x x United States forces to
to improve and deepen public land and facilities
the harbors, channels, (including roads, ports,
entrances and and airfields), including
anchorages, and to those owned or controlled
construct or maintain by local governments, and
necessary roads and to other land and facilities
bridges affording access to (including roads, ports,
the bases. and airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities,
services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals,
lakes, rivers, and streams in the Philippines in the same manner that Philippine military forces
enjoyed that right. No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces
temporary access to public land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III(2):

It is mutually agreed that When requested, the

the United States may Designated Authority of
employ and use for the Philippines shall assist
United States military in facilitating transit or
forces any and all public temporary access by
utilities, other services United States forces to
and facilities, airfields, public land and facilities
ports, harbors, roads, (including roads, ports,
highways, railroads, and airfields), including
bridges, viaducts, canals, those owned or controlled
lakes, rivers and streams by local governments, and
in the Philippines under to other land and facilities
conditions no less (including roads, ports,
favorable than and airfields).
those that may
be applicable from time
to time to the military
forces of the
Philippines.
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install,
maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or system
unlike in the old treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the
authority to undertake construction, alteration, or improvements on the Philippine-owned Agreed
Locations.

1947 MBA EDCA

1947 MBA, Art. EDCA, Art. III(4):
III(2)(e):
The Philippines hereby
Such rights, power and grants to the United
authority shall States, through
include, inter bilateral security
alia, the right, power mechanisms, such as the
and authority: x x x x MDB and SEB, operational
to construct, install, control of Agreed
maintain, and Locations for construction
employ on any base any activities and authority
type of facilities, to undertake such
weapons, substance, activities on, and make
device, vessel or alterations and
vehicle on or under the improvements to,
ground, in the air or on or Agreed
under the water that may Locations. United States
be requisite or forces shall consult on
appropriate, including issues regarding such
meteorological systems, construction, alterations,
aerial and water and improvements based
navigation lights, radio on the Parties' shared
and radar apparatus and intent that the technical
electronic devices, of any requirements and
desired power, type of construction standards of
emission and frequency. any such projects
undertaken by or on behalf
of United States forces
should be consistent with
the requirements and
standards of both Parties.

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 U.S.
as seen below:

1947 MBA EDCA

1947 MBA, Art. No equivalent provision.
XXII(l):

Whenever it is necessary
to acquire by

condemnation or
expropriation
proceedings real
property belonging to
any private
persons, associations or
corporations located in
bases named in Annex A
and Annex B in order to
carry out the purposes of
this Agreement, the
Philippines will institute
and prosecute such
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 costs therebv
incurred, including the
value of the property as
determined by the Court.
In addition, subject to the
mutual agreement of the
two Governments, the
United States will
reimburse the Philippines
for the reasonable costs of
transportation and
removal of any occupants
displaced or ejected by
reason of the
condemnation or
expropriation.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine
nationals who are under its employ, together with their families, in connection with the construction,
maintenance, or operation of the bases. EDCA strictly adheres to the limits under the VFA.

1947 MBA EDCA

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

It is mutually agreed that 1. "United States

the United States shall personnel" means
have the right to bring United States military
into the and civilian
Philippines members of personnel temporarily in
the United States military the territory of the
forces and the United Philippines in connection
States nationals with activities approved by
employed by or under the Philippines, as those
a contract with the terms are defined in
United States together the VFA.
with their families,
and technical x xx x
personnel of other
nationalities (not being 3. "United States
persons excluded by the contractors" means
laws of the Philippines) in companies and firms, and
connection with the their employees, under
construction, contract or subcontract to
maintenance, or operation or on behalf of the United
of the bases. The United States Department of
States shall make suitable Defense. United States
arrangements so that such contractors are not
persons may be readily included as part of
identified and their status the definition of United
established when States personnel in this
necessary by the Agreement, including
Philippine authorities. within the context of
Such persons, other than the VFA.
members of the United
States armed forces in
uniform, shall present
their travel documents to
 the appropriate Philippine
authorities for visas, it
being understood that no
objection will be made
to their travel to the
Philippines as non-
immigrants.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any
person within the Agreed Locations, unlike in the former military bases:

1947 MBA EDCA

1947 MBA, Art. No equivalent provision.
XIII(l)(a):

The Philippines consents

that the United

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
parties are both Philippine
citizens (not members of
the armed forces of the
United States on active
duty) or the offense is
against the security of the
Philippines.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is
free of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the
PX store has become the cultural icon of U.S. military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l): No equivalent provision.

It is mutually agreed that

the United States

shall have the right to

establish on bases, free
of all licenses; fees;
sales, excise or other
taxes, or
imposts; Government
agencies, including
concessions, such as sales
commissaries and post
exchanges; messes and
social clubs, for the
exclusive use of the
United States military
forces and authorized
civilian personnel and
their families. The
merchandise or services sold
or dispensed by such
 agencies shall be free of all
taxes, duties and
inspection by the
Philippine
authorities. Administrative
measures shall be taken by
the appropriate authorities
of the United States to
prevent the resale of goods
which are sold under the
provisions of this Article to
persons not entitled to buy
goods at such agencies and,
generally, to prevent abuse
of the privileges granted
under this Article. There
shall be cooperation between
such authorities and the
Philippines to this end.

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that
the 1987 Constitution was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and
"facilities" is required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital
in determining whether EDCA breached the constitutional restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the
decree as supported by Article 281 of the Revised Penal Code, which itself prohibits the act of
trespass.

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means
any military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or
installation in the Philippines."

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986
Constitutional Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac 329

The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of
Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the
sound and balanced conversion into alternative productive uses of the Clark and Subic military
reservations and their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter
Station, San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the
sale of portions of Metro Manila military camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the lands covered under the 194 7 Military
Bases Agreement between the Philippines and the United States of America, as amended.330

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which
specifically 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" was left undefined, its point of reference was clearly
those areas covered by the 1947 MBA as amended.

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 U.S. in the region was the use of Subic base as the staging ground for Desert
Shield and Desert Storm during the Gulf War. 331 In 1991, the Philippine Senate rejected the successor
treaty of the 1947 MBA that would have allowed the continuation of U.S. bases in the Philippines.

Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
consideration the subsisting agreements between both parties, the rejection of the 1991 proposal, and
a concrete understanding of what was constitutionally restricted. This trend birthed the VFA which,
as discussed, has already been upheld by this Court.

The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed, shall have the right to
access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be
appended to this Agreement, 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 the Agreed Locations means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within Philippine territory. 333

By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes
Senate concurrence a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines
to "conduct the following activities: "training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may agree."

This creation of EDCA must then be tested against a proper interpretation of the Section 25
restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible
military bases and facilities

Section 25 does not define what is meant by a "foreign military facility or base." While it specifically
alludes to U.S. military facilities and bases that existed during the framing of the Constitution, the
provision was clearly meant to apply to those bases existing at the time and to any future facility or
base. The basis for the restriction must first be deduced from the spirit of the law, in order to set a
standard for the application of its text, given the particular historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective
wisdom, the intent of Section 25. Their speeches are rich with history and wisdom and present a clear
picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO 334

xxxx

We have been regaled here by those who favor the adoption of the anti-bases provisions with what
purports to be an objective presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore the inequity in their
inception as well as their implementation, as to seriously reflect on the supposed objectivity of
the report. Pronouncements of military and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the implication is that the same remains valid
today, as if the world and international activity stood still for the last 40 years.

We have been given inspired lectures on the effect of the presence of the military bases
on our sovereignty - whether in its legal or political sense is not clear - and the theory
that any country with foreign bases in its territory cannot claim to be fully sovereign or
completely independent. I was not aware that the concepts of sovereignty and independence have
now assumed the totality principle, such that a willing assumption of some delimitations in the
exercise of some aspects thereof would put that State in a lower bracket of nationhood.

xxxx

We have been receiving a continuous influx of m aterials on the pros and cons on the advisability of
having military bases within our shores. Most of us who, only about three months ago, were just
mulling the prospects of these varying contentions are now expected, like armchair generals, to decide
not only on the geopolitical aspects and contingent implications of the military bases but also on their
political, social, economic and cultural impact on our national life. We are asked to answer a plethora
of questions, such as: 1) whether the bases are magnets of nuclear attack or are deterrents to such
attack; 2) whether an alliance or mutual defense treaty is a derogation of our national sovereignty; 3)
whether criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of the
ASEAN countries, the United States, South Korea, Taiwan, Australia and New Zealand; and 4)
whether the social, moral and legal problems spawned by the military bases and their operations can
be compensated by the economic benefits outlined in papers which have been furnished recently to all
of us.335

xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of
their positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the
proposed declaration as a "golden," "unique" and "last" opportunity for Filipinos to
assert their sovereign rights. Unfortunately, I have never been enchanted by superlatives, much
less for the applause of the moment or the ovation of the hour. Nor do I look forward to any glorious
summer after a winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke
a caveat not only against the tyranny of labels but also the tyranny of slogans. 336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of
foreign bases from the Philippines have been adequately treated by previous speakers. Let me,
therefore, just recapitulate the arguments adduced in favor of a foreign bases-free Philippines:

1. That every nation should be free to shape its own destiny without outside
interference;

2. That no lasting peace and no true sovereignty would ever be achieved so long as there
are foreign military forces in our country;

3. That the presence of foreign military bases deprives us of the very substance of
national sovereignty and this is a constant source of national embarrassment and an insult
to our national dignity and selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to devastating
nuclear attacks;
 5. That these foreign military bases create social problems and are designed to perpetuate the
strangle-hold of United States interests in our national economy and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own
national territory and against Filipinos;

7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null
and void ab initio, especially because they did not count the sovereign consent and will of the
Filipino people.338

xxxx

In the real sense, Madam President, if we in the Commission could accommodate the provisions I
have cited, what is our objection to include in our Constitution a matter as priceless as the nationalist
values we cherish? A matter of the gravest concern for the safety and survival of this
nation indeed deserves a place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and the future of
generations to come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN 340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are found and
whoever owns them is that those are for killing people or for terrorizing humanity. This
objective by itself at any point in history is morally repugnant. This alone is reason enough for us to
constitutionalize the ban on foreign military bases and on nuclear weapons. 341

SPEECH OF COMMISSIONER BACANI 342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in values. 343

SPEECH OF COMMISSIONER JAMIR 344

xxxx

One of the reasons advanced against the maintenance of foreign military bases here is
that they impair portions of our sovereignty. While I agree that our country's sovereignty
should not be impaired, I also hold the view that there are times when it is necessary to do so
according to the imperatives of national interest. There are precedents to this effect. Thus, during
World War II, England leased its bases in the West Indies and in Bermuda for 99 years to the United
States for its use as naval and air bases. It was done in consideration of 50 overaged destroyers which
the United States gave to England for its use in the Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as a
naval base in the Indian Ocean. About the same time, the United States obtained bases in Spain,
Egypt and Israel. In doing so, these countries, in effect, contributed to the launching of a preventive
defense posture against possible trouble in the Middle East and in the Indian Ocean for their own
protection.345

SPEECH OF COMMISSIONER TINGSON 346

xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of American troops
in the country is a projection of America's security interest. Enrile said that nonetheless, they also
serve, although in an incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Y es, of course, Mr. Enrile also echoes the sentiments of most of us in this
Commission, namely: It is ideal for us as an independent and sovereign nation to
ultimately abrogate the RP-US military treaty and, at the right time, build our own air
and naval might.347

xxxx

Allow me to say in summation that I am for the retention of American military bases in
the Philippines provided that such an extension from one period to another shall be
concluded upon concurrence of the parties, and such extension shall be based on
justice, the historical amity of the people of the Philippines and the United States and
their common defense interest.348

SPEECH OF COMMISSIONER ALONTO 349

xxxx

Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal of the U.S.
military bases in this country but that the removal of the U.S. military bases should not be done just to
give way to other foreign bases. Today, there are two world superpowers, both vying to control any
and all countries which have importance to their strategy for world domination. The Philippines is
one such country.

Madam President, I submit that I am one of those ready to completely remove any vestiges
of the days of enslavement, but not prepared to erase them if to do so would merely leave a
vacuum to be occupied by a far worse type.350

SPEECH OF COMMISSIONER GASCON 351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in
Indo-China, Central America, in South Africa - there has been escalation of war in some of these areas
because of foreign intervention which views these conflicts through the narrow prism of the East-
West conflict. The United States bases have been used as springboards for intervention in
some of these conflicts. We should not allow ourselves to be party to the warlike
mentality of these foreign interventionists. We must always be on the side of peace – this
means that we should not always rely on military solution. 352

xxxx

x x x The United States bases, therefore, are springboards for intervention in our own
internal affairs and in the affairs of other nations in this region.

xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which
should logically be declared in black and white in our fundamental law of the land - the
Constitution. Let us express our desire for national sovereignty so we may be able to
achieve national self-determination. Let us express our desire for neutrality so that we may be
able to follow active nonaligned independent foreign policies. Let us express our desire for peace and
a nuclear-free zone so we may be able to pursue a healthy and tranquil existence, to have peace that is
autonomous and not imposed. 353

xxxx

SPEECH OF COMMISSIONER TADEO 354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa

magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili
ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na
nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong
pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan
ng patuloy na paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan -
economically, politically and culturally. Para sa sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang kahulugan ay magneto ng
isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S. military
bases ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356

xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of
domination and subservience has clearly been defined these past weeks.

xxxx

So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's
position to enshrine in the Constitution a fundamental principle forbidding foreign military bases,
troops or facilities in any part of the Philippine territory as a clear and concrete manifestation of
our inherent right to national self-determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social
cost of allowing foreign countries to maintain military bases in our country. Previous speakers have
dwelt on this subject, either to highlight its importance in relation to the other issues or to gloss over
its significance and !llake this a part of future negotiations. 357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the
response of the Filipino people against this condition and other conditions that have already been
clearly and emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the
Constitution we are drafting will have the following implications:

First, the failure of the Constitutional Commission to decisively respond to the continuing
violation of our territorial integrity via the military bases agreement which permits the
retention of U.S. facilities within the Philippine soil over which our authorities have no
exclusive jurisdiction contrary to the accepted definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the

application of a provision in the Bill of Rights that we have just drafted regarding equal
application of the laws of the land to all inhabitants, permanent or otherwise, within its territorial
boundaries.

Third, the continued exercise by the United States of extraterritoriality despite the
condemnations of such practice by the world community of nations in the light of overwhelming
international approval of eradicating all vestiges of colonialism. 358

xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be
wielded to force the United States government to concede to better terms and conditions concerning
the military bases agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to suffer all existing indignities
and disrespect towards our rights as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as
essentially a question of sovereignty which does not require in-depth studies or analyses and
which this forum has, as a constituent assembly drafting a constitution, the expertise and capacity to
decide on except that it lacks the political will that brought it to existence and now engages in an
elaborate scheme of buck-passing.

xxxx
Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold
and defend our national sovereignty. National sovereignty is what the military bases issue is
all about. It is only the sovereign people exercising their national sovereignty who can design an
independent course and take full control of their national destiny. 359

SPEECH OF COMMISSIONER P ADILLA360

xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on
neutrality, nuclear and bases-free country, some views stress sovereignty of the Republic and
even invoke survival of the Filipino nation and people. 361

REBUTTAL OF COMMISSIONER NOLLEDO 362

xxxx

The anachronistic and ephemeral arguments against the provisions of the committee report to
dismantle the American bases after 1991 only show the urgent need to free our country from the
entangling alliance with any power bloc.363

xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called RP-
US Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction
as well as national dignity and honor, that it goes against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.364 (Emphases Supplied)

The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities,
subject to the provisions of Section 25. It is thus important to read its discussions carefully. From
these discussions, we can deduce three legal standards that were articulated by the Constitutional
Commission Members. These are characteristics of any agreement that the country, and by extension
this Court, must ensure are observed. We can thereby determine whether a military base or facility in
the Philippines, which houses or is accessed by foreign military troops, is foreign or remains a
Philippine military base or facility. The legal standards we find applicable are: independence from
foreign control, sovereignty and applicable law, and national security and territorial integrity.

i. First standard: independence from foreign control

Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was
aimed at asserting Philippine independence from the U.S., as well as control over our country's
territory and military.

Under the Civil Code, there are several aspects of control exercised over property.

Property is classified as private or public. 365 It is public if "intended for public use, such as roads,
canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character[,]" or "[t]hose which belong to the State, without being for public use, and
are intended for some public service or for the development of the national wealth. " 366

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines.1avvphi1

Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."

Philippine civil law therefore accords very strong rights to the owner of property, even against those
who hold the property. Possession, after all, merely raises a disputable presumption of ownership,
which can be contested through normal judicial processes. 367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the
Philippine govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access
to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the Civil Code, since
the owner may dispose of the property in whatever way deemed fit, subject to the limits of the law. So
long as the right of ownership itself is not transferred, then whatever rights are transmitted by
agreement does not completely divest the owner of the rights over the property, but may only limit
them in accordance with law.

Hence, even control over the property is something that an owner may transmit freely. This act does
not translate into the full transfer of ownership, but only of certain rights. In Roman Catholic
Apostolic Administrator of Davao, Inc. v. Land Registration Commission, we stated that the
constitutional proscription on property ownership is not violated despite the foreign national's control
over the property.370

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access.
Under its pertinent provisions, it is the Designated Authority of the Philippines that shall, when
requested, assist in facilitating transit or access to public land and facilities. 371 The activities carried
out within these locations are subject to agreement as authorized by the Philippine
govemment.372 Granting the U.S. operational control over these locations is likewise subject to EDCA'
s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated representative is
given access to the Agreed Locations. 374

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation from
the point of view of the Philippine government, which balanced constitutional restrictions on foreign
military bases and facilities against the security needs of the country. In the 1947 MBA, the U.S. forces
had "the right, power and authority x x x to construct (including dredging and filling), operate,
maintain, utilize, occupy, garrison and control the bases." 375 No similarly explicit provision is present
in EDCA.

Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been
raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or
facilities shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate.
Merely stating that the Philippines would retain ownership would do violence to the constitutional
requirement if the Agreed Locations were simply to become a less obvious manifestation of the U.S.
bases that were rejected in 1991.

When debates took place over the military provisions of the Constitution, the committee rejected a
specific provision proposed by Commissioner Sarmiento. The discussion illuminates and provides
context to the 1986 Constitutional Commission's vision of control and independence from the U.S., to
wit:

MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE
SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES
OF THE PHILIPPINES." Allow me to briefly explain, Madam President. The Armed Forces of the
Philippines is a vital component of Philippine society depending upon its training, orientation and
support. It will either be the people's protector or a staunch supporter of a usurper or tyrant, local and
foreign interest. The Armed Forces of the Philippines' past and recent experience shows it
has never been independent and self-reliant. Facts, data and statistics will show that it has
been substantially dependent upon a foreign power. In March 1968, Congressman Barbero, himself a
member of the Armed Forces of the Philippines, revealed top secret documents showing what he
described as U.S. dictation over the affairs of the Armed Forces of the Philippines. He showed that
under existing arrangements, the United States unilaterally determines not only the
types and quantity of arms and equipments that our armed forces would have, but also
the time when these items are to be made available to us. It is clear, as he pointed out,
that the composition, capability and schedule of development of the Armed Forces of
the Philippines is under the effective control of the U.S. government.376 (Emphases
supplied)

Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would
assert "independent" and "self-reliant" armed forces. This proposal was rejected by the
committee, however. As Commissioner De Castro asserted, the involvement of the
Philippine military with the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the times: that the limited resources of the
Philippines and the current insurgency at that time necessitated a strong military relationship with
the U.S. He said that the U.S. would not in any way control the Philippine military despite this
relationship and the fact that the former would furnish military hardware or extend military
assistance and training to our military. Rather, he claimed that the proposal was in compliance with
the treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12
September 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited
resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country
- insurgency - and with very limited funds and very limited number of men, it will be quite impossible
for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S.
government is furnishing us the military hardware, it is not control of our armed forces
or of our government. It is in compliance with the Mutual Defense Treaty. It is under the
military assistance program that it becomes the responsibility of the United States to furnish us the
necessary hardware in connection with the military bases agreement. Please be informed that there
are three (3) treaties connected with the military bases agreement; namely: the RP-US Military Bases
Agreement, the Mutual Defense Treaty and the Military Assistance Program.

My dear Commissioner, when we enter into a treaty and we are furnished the military
hardware pursuant to that treaty, it is not in control of our armed forces nor control of
our government. True indeed, we have military officers trained in the U.S. armed forces school.
This is part of our Military Assistance Program, but it does not mean that the minds of our military
officers are for the U.S. government, no. I am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people. Also, while we are sending military
officers to train or to study in U.S. military schools, we are also sending our officers to study in other
military schools such as in Australia, England and in Paris. So, it does not mean that when we send
military officers to United States schools or to other military schools, we will be under the control of
that country. We also have foreign officers in our schools, we in the Command and General Staff
College in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio. 377 (Emphases
supplied)

This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not
mean the absence of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national economy" does
not necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither "economic seclusion" nor "mendicancy in the international community." As
explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self reliance is a primary objective of a developing country tha t is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in the development of natural resources
and public utilities.378 (Emphases supplied)

The heart of the constitutional restriction on foreign military facilities and bases is therefore the
assertion of independence from the U.S. and other foreign powers, as independence is exhibited by
the degree of foreign control exerted over these areas.1âwphi1 The essence of that independence is
self-governance and self-control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380

Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine
facilities and locations, such that the agreement effectively violates Section 25 of the 1987
Constitution.381

Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control
and defense." The term "operational control" has led petitioners to regard U.S. control over the
Agreed Locations as unqualified and, therefore, total. 382 Petitioners contend that the word "their"
refers to the subject "Agreed Locations."

This argument misreads the text, which is quoted below:

United States forces are authorized to exercise all rights and authorities within Agreed Locations that
are necessary for their operational control or defense, including taking appropriate measure to protect
United States forces and United States contractors. The United States should coordinate such
measures with appropriate authorities of the Philippines.

A basic textual construction would show that the word "their," as understood above, is a possessive
pronoun for the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot
be used for a non-personal subject such as "Agreed Locations." The simple grammatical conclusion is
that "their" refers to the previous third-person plural noun, which is "United States forces." This
conclusion is in line with the definition of operational control.

a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed
Locations

Operational control, as cited by both petitioner and respondents, is a military term referring to

[t]he authority to perform those functions of command over subordinate forces involving organizin g
and employing commands and forces, assigning tasks, designating objective, and giving authoritative
direction necessary to accomplish the mission. 383

At times, though, operational control can mean something slightly different. In JUSMAG Philippines
v. National Labor Relations Commission, the Memorandum of Agreement between the AFP and
JUSMAG Philippines defined the term as follows: 384

The term "Operational Control" includes, but is not limited to, all personnel administrative actions,
such as: hiring recommendations; firing recommendations; position classification; discipline;
nomination and approval of incentive awards; and payroll computation.

Clearly, traditional standards define "operational control" as personnel control. Philippine law, for
instance, deems operational control as one exercised by police officers and civilian authorities over
their subordinates and is distinct from the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises operational control over the police within the
municipal government,386 just as city mayor possesses the same power over the police within the city
government.387

Thus, the legal concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in this particular
case. Though not necessarily stated in EDCA provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to protect United States forces and United States
contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much
the same way that the Philippines exercises operational control over its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the MDB-
SEB.388 This provision evinces the partnership aspect of EDCA, such that both stakeholders have a say
on how its provisions should be put into effect.

b. Operational control vis-à-vis effective command and control

Petitioners assert that beyond the concept of operational control over personnel, qualifying access to
the Agreed Locations by the Philippine Designated Authority with the phrase "consistent with
operational safety and security requirements in accordance with agreed procedures developed by the
Parties" leads to the conclusion that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession of and control over a given area,
its representative should not have to be authorized by a special provision. 390

For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command
and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and
control from operational control in U.S. parlance. 392 Citing the Doctrine for the Armed Forces of the
United States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of authority
and direction by a properly designated commander over assigned and attached forces in the
accomplishment of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the overall control of assigned resources, and the
full authoritative direction necessary to accomplish the mission." 394

Two things demonstrate the errors in petitioners' line of argument.

Firstly, the phrase "consistent with operational safety and security requirements in accordance with
agreed procedures developed by the Parties" does not add any qualification beyond that which is
already imposed by existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA
and the MDT.395 Treaties are in themselves contracts from which rights and obligations may be
claimed or waived.396 In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and the Philippines based on the
implementation of their treaty relations. 397

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:398

Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Comm and at all levels is the
art of motivating and directing people and organizations into action to accomplish missions. Control
is inherent in command. To control is to manage and direct forces and functions consistent with a
commander's command authority. Control of forces and functions helps commanders and staffs
compute requirements, allocate means, and integrate efforts. Mission command is the preferred
method of exercising C2. A complete discussion of tenets, organization, and processes for effective C2
is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint Command and
Control."

Operational control is defined thus: 399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform
those functions of command over subordinate forces involving organizing and employing commands
and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects
of military operations and joint training necessary to accomplish the mission. It should be delegated
to and exercised by the commanders of subordinate organizations; normally, this authority is
exercised through subordinate JFCs, Service, and/or functional component commanders. OPCON
provides authority to organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative direction for logistics or
matters of administration, discipline, internal organization, or unit training. These elements of
COCOM must be specifically delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a
mission. Operational control is a narrower power and must be given, while command and control is
plenary and vested in a commander. Operational control does not include the planning,
programming, budgeting, and execution process input; the assignment of subordinate commanders;
the building of relationships with Department of Defense agencies; or the directive authority for
logistics, whereas these factors are included in the concept of command and control. 400

This distinction, found in the same document cited by petitioners, destroys the very foundation of the
arguments they have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational
control within the Agreed Locations during construction activities. 401 This exercise of operational
control is premised upon the approval by the MDB and the SEB of the construction activity through
consultation and mutual agreement on the requirements and standards of the construction,
alteration, or improvement.402

Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for
construction activities. The narrow and limited instance wherein the U.S. is given operational control
within an Agreed Location cannot be equated with foreign military control, which is so abhorred by
the Constitution.

The clear import of the provision is that in the absence of construction activities, operational control
over the Agreed Location is vested in the Philippine authorities. This meaning is implicit in the
specific grant of operational control only during construction activities. The principle of constitutional
construction, "expressio unius est exclusio alterius," means the failure to mention the thing becomes
the ground for inferring that it was deliberately excluded. 403 Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed Locations for construction
activities, then it is quite logical to conclude that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the commissioners w as total control, to
the point that the foreign military forces might dictate the terms of their acts within the
Philippines.404 More important, limited control does not mean an abdication or derogation of
Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the
extension of diplomatic courtesies and rights to diplomatic agents, 405 which is a waiver of control on a
limited scale and subject to the terms of the treaty.

This point leads us to the second standard envisioned by the framers of the Constitution: that the
Philippines must retain sovereignty and jurisdiction over its territory.

ii. Second standard: Philippine sovereignty and applicable law

EDCA states in its Preamble the "understanding for the United States not to establish a permanent
military presence or base in the territory of the Philippines." Further on, it likewise states the
recognition that "all United States access to and use of facilities and areas will be at the invitation of
the Philippines and with full respect for the Philippine Constitution and Philippine laws."

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine
sovereignty and jurisdiction over the Agreed Locations.

Sovereignty is the possession of sovereign power, 406 while jurisdiction is the conferment by law of
power and authority to apply the law. 407 Article I of the 1987 Constitution states:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting
the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Emphasis supplied)

From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces
are allowed to access and use.408 By withholding ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty over its territory. That sovereignty exists so long
as the Filipino people exist.409

Significantly, the Philippines retains primary responsibility for security with respect to the Agreed
Locations.410 Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction
has been transferred to the U.S. Even the previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with Philippine authorities. 411

Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws
continue to be in force within the bases. 412 The difference between then and now is that EDCA retains
the primary jurisdiction of the Philippines over the security of the Agreed Locations, an important
provision that gives it actual control over those locations. Previously, it was the provost marshal of the
U.S. who kept the peace and enforced Philippine law in the bases. In this instance, Philippine forces
act as peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction. 413

iii. Third standard: must respect national security and territorial integrity

The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not
impair or threaten the national security and territorial integrity of the Philippines.

This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially
rendered the prior notion of permanent military bases obsolete.

Moreover, military bases established within the territory of another state is no longer viable because
of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used a s substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities. Besides, vessels
are mobile as compared to a land-based military headquarters.414

The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for
instance, the re-establishment of the Subic military base or the Clark Air Field as U.S. military
reservations. In this context, therefore, this Court has interpreted the restrictions on foreign bases,
troops, or facilities as three independent restrictions. In accord with this interpretation, each
restriction must have its own qualification.

Petitioners quote from the website http://en.wikipedia.org to define what a military base is. 415 While
the source is not authoritative, petitioners make the point that the Agreed Locations, by gran ting
access and use to U.S. forces and contractors, are U.S. bases under a different name. 416 More
important, they claim that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S.417

We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics
and policy. At the very least, we can say that under international law, EDCA does not provide a legal
basis for a justified attack on the Philippines.

In the first place, international law disallows any attack on the Agreed Locations simply because of the
presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members shall
refrain in their international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations."418 Any unlawful attack on the Philippines breaches the treaty, and triggers Article 51
of the same charter, which guarantees the inherent right of individual or collective self-defence.

Moreover, even if the lawfulness of the attack were not in question, international humanitarian law
standards prevent participants in an armed conflict from targeting non-participants. International
humanitarian law, which is the branch of international law applicable to armed conflict, expressly
limits allowable military conduct exhibited by forces of a participant in an armed conflict. 419 Under
this legal regime, participants to an armed conflict are held to specific standards of conduct that
require them to distinguish between combatants and non-combatants,420 as embodied by the Geneva
Conventions and their Additional Protocols.421

Corollary to this point, Professor John Woodcliffe, professor of international law at the University of
Leicester, noted that there is no legal consensus for what constitutes a base, as opposed to other terms
such as "facilities" or "installation."422 In strategic literature, "base" is defined as an installation "over
which the user State has a right to exclusive control in an extraterritorial sense." 423 Since this
definition would exclude most foreign military installations, a more important distinction must be
made.

For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill
a combat role. He cites an example of the use of the territory of a state for training purposes, such as
to obtain experience in local geography and climactic conditions or to carry out joint
exercises.424 Another example given is an advanced communications technology installation for
purposes of information gathering and communication. 425 Unsurprisingly, he deems these non-
combat uses as borderline situations that would be excluded from the functional understanding of
military bases and installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a bu ilding or person is presumed
to be protected, unless proven otherwise.427 Moreover, the principle of distinction requires
combatants in an armed conflict to distinguish between lawful targets428 and protected targets.429 In
an actual armed conflict between the U.S. and a third state, the Agreed Locations cannot be
considered U.S. territory, since ownership of territory even in times of armed conflict does not
change.430

Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate
under international humanitarian law if it is against a bona fide U.S. military base, facility, or
installation that directly contributes to the military effort of the U.S. Moreover, the third state's forces
must take all measures to ensure that they have complied with the principle of distinction (between
combatants and non-combatants).

There is, then, ample legal protection for the Philippines under international law that would ensure its
territorial integrity and national security in the event an Agreed Location is subjected to attack. As
EDCA stands, it does not create the situation so feared by petitioners - one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by an enemy of the U.S.431

In the second place, this is a policy question about the wisdom of allowing the presence of U.S.
personnel within our territory and is therefore outside the scope of judicial review.

Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within
the military base of another sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense cooperation agreements, such as in
the following:

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432

2. 2009 U.S.-Colombia Defense Cooperation Agreement433

3. 2009 U.S.-Poland Status of Forces Agreement434

4. 2014 U.S.-Australia Force Posture Agreement435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement 436

In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That
access is without rental or similar costs to the U.S. 438 Further, U.S. forces are allowed to undertake
construction activities in, and make alterations and improvements to, the agreed locations, facilities,
or areas.439 As in EDCA, the host states retain ownership and jurisdiction over the said bases. 440

In fact, some of the host states in these agreements give specific military-related rights to the U.S. For
example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States
forces x x x are authorized access to and may use agreed facilities and areas x x x for staging and
deploying of forces and materiel, with the purpose of conducting x x x contingency operations and
other missions, including those undertaken in the framework of the North Atlantic Treaty." In some
of these agreements, host countries allow U.S. forces to construct facilities for the latter’s exclusive
use.441

Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S.
forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction and
messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA,
the MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services," 442 which include "[b ]illeting, x x
x operations support (and construction and use of temporary structures incident to operations
support), training services, x x x storage services, x x x during an approved activity." 443 These logistic
supplies, support, and services include temporary use of "nonlethal items of military equipment
which are not designated as significant military equipment on the U.S. Munitions List, during an
approved activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one
has been extended until 2017 without any formal objection before this Court from the Senate or any of
its members.

The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned
executive agreements. Instead of authorizing the building of temporary structures as previous
agreements have done, EDCA authorizes the U.S. to build permanent structures or alter or improve
existing ones for, and to be owned by, the Philippines.445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas for "training; x x
x; support and related activities; x x x; temporary accommodation of personnel; communications" and
agreed activities.447

Concerns on national security problems that arise from foreign military equipment being present in
the Philippines must likewise be contextualized. Most significantly, the VFA already authorizes
the presence of U.S. military equipment in the country. Article VII of the VFA already
authorizes the U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and
other property" that will be used "in connection with activities" contemplated therein. The same
section also recognizes that "[t]itle to such property shall remain" with the US and that they have the
discretion to "remove such property from the Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two
countries have already entered into various implementing agreements in the past that are comparable
to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the use of their
resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services, including the "construction and use of
temporary structures incident to operations support" and "storage services" during approved
activities.449 These logistic supplies, support, and services include the "temporary use of x x x
nonlethal items of military equipment which are not designated as significant military equipment on
the U.S. Munitions List, during an approved activity." 450 Those activities include "combined exercises
and training, operations and other deployments" and "cooperative efforts, such as humanitarian
assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or
outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel that will be
prepositioned at Agreed Locations include "humanitarian assistance and disaster relief equipment,
supplies, and materiel. "452 Nuclear weapons are specifically excluded from the materiel that will be
prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national
security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response,
the Philippines will be prepared alongside the U.S. to defend its islands and insure its territorial
integrity pursuant to a relationship built on the MDT and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help
and defense in the Pacific area. 453 We believe that any discussion of the activities to be undertaken
under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note that a proper
petition on that issue must be filed before we rule thereon. We also note that none of the petitions or
memoranda has attempted to discuss this issue, except only to theorize that the U.S. will not come to
our aid in the event of an attack outside of the Pacific. This is a matter of policy and is beyond the
scope of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the
facility adverted to does appear to be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the Constitution. As respondents submit,
however, the system referred to in the agreement does not provide telecommunications services to the
public for compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication system
is solely for the use of the U.S. and not the public in general, and that this system will not interfere
with that which local operators use. Consequently, a public franchise is no longer necessary.

Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely
speculative. It is noteworthy that the agreement in fact specifies that the prepositioned materiel shall
not include nuclear weapons.455 Petitioners argue that only prepositioned nuclear weapons are
prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.456 The general prohibition on nuclear weapons, whether prepositioned or not, is
already expressed in the 1987 Constitution. 457 It would be unnecessary or superfluous to include all
prohibitions already in the Constitution or in the law through a document like EDCA.

Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate
from Congress. This allegation ignores jurisprudence on the government's assumption of tax liability.
EDCA simply states that the taxes on the use of water, electricity, and public utilities are for the
account of the Philippine Government. 458 This provision creates a situation in which a contracting
party assumes the tax liability of the other. 459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable stipulations on the assumption of
tax liability. Afterwards, we concluded that an enforceable assumption of tax liability requires the
party assuming the liability to have actual interest in the property taxed. 460 This rule applies to EDCA,
since the Philippine Government stands to benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces, disaster preparation, and the preferential
use of Philippine suppliers.461 Hence, the provision on the assumption of tax liability does not
constitute a tax exemption as petitioners have posited.

Additional issues were raised by petitioners, all relating principally to provisions already sufficiently
addressed above. This Court takes this occasion to emphasize that the agreement has been construed
herein as to absolutely disauthorize the violation of the Constitution or any applicable statute. On the
contrary, the applicability of Philippine law is explicit in EDCA.

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities
in Philippine history arises not so much from xenophobia, but from a genuine desire for self -
determination, nationalism, and above all a commitment to ensure the independence of the
Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of his
Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he deems that
additional security measures are made necessary by the times. As it stands, the Philippines through
the Department of Foreign Affairs has filed several diplomatic protests against the actions of the
People's Republic of China in the West Philippine Sea;462 initiated arbitration against that country
under the United Nations Convention on the Law of the Sea; 463 is in the process of negotiations with
the Moro Islamic Liberation Front for peace in Southern Philippines, 464 which is the subject of a
current case before this Court; and faces increasing incidents of kidnappings of Filipinos and
foreigners allegedly by the Abu Sayyaf or the New People's Army. 465 The Philippine military is
conducting reforms that seek to ensure the security and safety of the nation in the years to come. 466 In
the future, the Philippines must navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing asymmetric warfare and remote
weapons.

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

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

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

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

G.R. No. 94723 August 21, 1997

KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr., father and Natural
Guardian, and Spouses FEDERICO N. SALVACION, JR., and EVELINA E. SALVACION,
petitioners,
vs.
CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING CORPORATION and GREG
BARTELLI y NORTHCOTT, respondents.

TORRES, JR., J.:

In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars
of the status quo. Ligle do we realize that statutes or even constitutions are bundles of compromises
thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune
and irrelevant to our day.

The petition is for declaratory relief. It prays for the following reliefs:

a.) Immediately upon the filing of this petition, an Order be issued restraining the respondents from
applying and enforcing Section 113 of Central Bank Circular No. 960;
b.) After hearing, judgment be rendered:

1.) Declaring the respective rights and duties of petitioners and respondents;

2.) Adjudging Section 113 of Central Bank Circular No. 960 as contrary to the provisions of the
Constitution, hence void; because its provision that "Foreign currency deposits shall be exempt from
attachment, garnishment, or any other order or process of any court, legislative body, government
agency or any administrative body whatsoever

i.) has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y
Northcott garnished to satisfy the judgment rendered in petitioners' favor in violation of substantive
due process guaranteed by the Constitution;

ii.) has given foreign currency depositors an undue favor or a class privilege in violation of the equal
protection clause of the Constitution;

iii.) has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since
criminals could escape civil liability for their wrongful acts by merely converting their money to a
foreign currency and depositing it in a foreign currency deposit account with an authorized bank.

The antecedent facts:

On February 4, 1989, Greg Bartelli y Northcott, an American tourist, coaxed and lured petitioner
Karen Salvacion, then 12 years old to go with him to his apartment. Therein, Greg Bartelli detained
Karen Salvacion for four days, or up to February 7, 1989 and was able to rape the child once on
February 4, and three times each day on February 5, 6, and 7, 1989. On February 7, 1989, after
policemen and people living nearby, rescued Karen, Greg Bartelli was arrested and detained at the
Makati Municipal Jail. The policemen recovered from Bartelli the following items: 1.) Dollar Check
No. 368, Control No. 021000678-1166111303, US 3,903.20; 2.) COCOBANK Bank Book No. 104-
108758-8 (Peso Acct.); 3.) Dollar Account — China Banking Corp., US$/A#54105028-2; 4.) ID-122-
30-8877; 5.) Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed Doll (Teddy Bear)
used in seducing the complainant.

On February 16, 1989, Makati Investigating Fiscal Edwin G. Condaya filed against Greg Bartelli,
Criminal Case No. 801 for Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804, and 805
for four (4) counts of Rape. On the same day, petitioners filed with the Regional Trial Court of Makati
Civil Case No. 89-3214 for damages with preliminary attachment against Greg Bartelli. On February
24, 1989, the day there was a scheduled hearing for Bartelli's petition for bail the latter escaped from
jail.

On February 28, 1989, the court granted the fiscal's Urgent Ex-Parte Motion for the Issuance of
Warrant of Arrest and Hold Departure Order. Pending the arrest of the accused Greg Bartelli y
Northcott, the criminal cases were archived in an Order dated February 28, 1989.

Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order dated February 22, 1989 granting
the application of herein petitioners, for the issuance of the writ of preliminary attachment. After
petitioners gave Bond No. JCL (4) 1981 by FGU Insurance Corporation in the amount of
P100,000.00, a Writ of Preliminary Attachment was issued by the trial court on February 28, 1989.

On March 1, 1989, the Deputy Sheriff of Makati served a Notice of Garnishment on China Banking
Corporation. In a letter dated March 13, 1989 to the Deputy Sheriff of Makati, China Banking
Corporation invoked Republic Act No. 1405 as its answer to the notice of garnishment served on it.
On March 15, 1989, Deputy Sheriff of Makati Armando de Guzman sent his reply to China Banking
Corporation saying that the garnishment did not violate the secrecy of bank deposits since the
disclosure is merely incidental to a garnishment properly and legally made by virtue of a court order
which has placed the subject deposits in custodia legis. In answer to this letter of the Deputy Sheriff of
Makati, China Banking Corporation, in a letter dated March 20, 1989, invoked Section 113 of Central
Bank Circular No. 960 to the effect that the dollar deposits or defendant Greg Bartelli are exempt
from attachment, garnishment, or any other order or process of any court, legislative body,
government agency or any administrative body, whatsoever.

This prompted the counsel for petitioners to make an inquiry with the Central Bank in a letter dated
April 25, 1989 on whether Section 113 of CB Circular No. 960 has any exception or whether said
section has been repealed or amended since said section has rendered nugatory the substantive right
of the plaintiff to have the claim sought to be enforced by the civil action secured by way of the writ of
preliminary attachment as granted to the plaintiff under Rule 57 of the Revised Ru les of Court. The
Central Bank responded as follows:

May 26, 1989

Ms. Erlinda S. Carolino

12 Pres. Osmena Avenue
South Admiral Village
Paranaque, Metro Manila

Dear Ms. Carolino:

This is in reply to your letter dated April 25, 1989 regarding your inquiry on Section 113, CB Circular
No. 960 (1983).

The cited provision is absolute in application. It does not admit of any exception, nor has the same
been repealed nor amended.

The purpose of the law is to encourage dollar accounts within the country's banking system which
would help in the development of the economy. There is no intention to render futile the basic rights
of a person as was suggested in your subject letter. The law may be harsh as some perceive it, but it is
still the law. Compliance is, therefore, enjoined.

Very truly yours,

(SGD) AGAPITO S. FAJARDO

Director1

Meanwhile, on April 10, 1989, the trial court granted petitioners' motion for leave to serve summons
by publication in the Civil Case No. 89-3214 entitled "Karen Salvacion, et al. vs. Greg Bartelli y
Northcott." Summons with the complaint was a published in the Manila Times once a week for three
consecutive weeks. Greg Bartelli failed to file his answer to the complaint and was declared in default
on August 7, 1989. After hearing the case ex-parte, the court rendered judgment in favor of petitioners
on March 29, 1990, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendant, ordering the
latter:

1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00 as moral damages;

2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr., and Evelina E. Salvacion the
amount of P150,000.00 each or a total of P300,000.00 for both of them;

3. To pay plaintiffs exemplary damages of P100,000.00; and

4. To pay attorney's fees in an amount equivalent to 25% of the total amount of damages herein
awarded;

5. To pay litigation expenses of P10,000.00; plus

6. Costs of the suit.

SO ORDERED.

The heinous acts of respondent Greg Bartelli which gave rise to the award were related in graphic
detail by the trial court in its decision as follows:

The defendant in this case was originally detained in the municipal jail of Makati but was able to
escape therefrom on February 24, 1989 as per report of the Jail Warden of Makati to the Presiding
Judge, Honorable Manuel M. Cosico of the Regional Trial Court of Makati, Branch 136, where he was
charged with four counts of Rape and Serious Illegal Detention (Crim. Cases Nos. 802 to 805).
Accordingly, upon motion of plaintiffs, through counsel, summons was served upon defendant by
publication in the Manila Times, a newspaper of general circulation as attested by the Advertising
Manager of the Metro Media Times, Inc., the publisher of the said newspaper. Defendant, however,
failed to file his answer to the complaint despite the lapse of the period of sixty (60) days from the last
publication; hence, upon motion of the plaintiffs, through counsel, defendant was declared in default
and plaintiffs were authorized to present their evidence ex parte.

In support of the complaint, plaintiffs presented as witnesses the minor Karen E. Salvacion, her
father, Federico N. Salvacion, Jr., a certain Joseph Aguilar and a certain Liberato Madulio, who gave
the following testimony:

Karen took her first year high school in St. Mary's Academy in Pasay City but has recently transferred
to Arellano University for her second year.

In the afternoon of February 4, 1989, Karen was at the Plaza Fair Makati Cinema Square, with her
friend Edna Tangile whiling away her free time. At about 3:30 p.m. while she was finishing her snack
on a concrete bench in front of Plaza Fair, an American approached her. She was then alone because
Edna Tangile had already left, and she was about to go home. (TSN, Aug. 15, 1989, pp. 2 to 5)

The American asked her name and introduced himself as Greg Bartelli. He sat beside her when he
talked to her. He said he was a Math teacher and told her that he has a sister who is a nurse in New
Y ork. His sister allegedly has a daughter who is about Karen's age and who was with him in his house
along Kalayaan Avenue. (TSN, Aug. 15, 1989, pp. 4-5)

The American asked Karen what was her favorite subject and she told him it's Pilipino. He then
invited her to go with him to his house where she could teach Pilipino to his niece. He even gave her a
stuffed toy to persuade her to teach his niece. (Id., pp. 5-6)

They walked from Plaza Fair along Pasong Tamo, turning right to reach the defendant's house along
Kalayaan Avenue. (Id., p. 6)

When they reached the apartment house, Karen noticed that defendant's alleged niece was not
outside the house but defendant told her maybe his niece was inside. When Karen did not see the
alleged niece inside the house, defendant told her maybe his niece was upstairs, and invited Karen to
go upstairs. (Id., p. 7)

Upon entering the bedroom defendant suddenly locked the door. Karen became nervous bec ause his
niece was not there. Defendant got a piece of cotton cord and tied Karen's hands with it, and then he
undressed her. Karen cried for help but defendant strangled her. He took a packing tape and he
covered her mouth with it and he circled it around her head. (Id., p. 7)

Then, defendant suddenly pushed Karen towards the bed which was just near the door. He tied her
feet and hands spread apart to the bed posts. He knelt in front of her and inserted his finger in her sex
organ. She felt severe pain. She tried to shout but no sound could come out because there were tapes
on her mouth. When defendant withdrew his finger it was full of blood and Karen felt more pain after
the withdrawal of the finger. (Id., p. 8)
He then got a Johnson's Baby Oil and he applied it to his sex organ as well as to her sex organ. After
that he forced his sex organ into her but he was not able to do so. While he was doing it, Karen found
it difficult to breathe and she perspired a lot while feeling severe pain. She merely presu med that he
was able to insert his sex organ a little, because she could not see. Karen could not recall how long the
defendant was in that position. (Id. pp. 8-9)

After that, he stood up and went to the bathroom to wash. He also told Karen to take a show er and he
untied her hands. Karen could only hear the sound of the water while the defendant, she presumed,
was in the bathroom washing his sex organ. When she took a shower more blood came out from her.
In the meantime, defendant changed the mattress because it was full of blood. After the shower,
Karen was allowed by defendant to sleep. She fell asleep because she got tired crying. The incident
happened at about 4:00 p.m. Karen had no way of determining the exact time because defendant
removed her watch. Defendant did not care to give her food before she went to sleep. Karen woke up
at about 8:00 o'clock the following morning. (Id., pp. 9-10)

The following day, February 5, 1989, a Sunday, after a breakfast of biscuit and coke at about 8:30 to
9:00 a.m. defendant raped Karen while she was still bleeding. For lunch, they also took biscuit and
coke. She was raped for the second time at about 12:00 to 2:00 p.m. In the evening, they had rice for
dinner which defendant had stored downstairs; it was he who cooked the rice that is why it looks like
"lugaw". For the third time, Karen was raped again during the night. During those three times
defendant succeeded in inserting his sex organ but she could not say whether the organ was inserted
wholly.

Karen did not see any firearm or any bladed weapon. The defendant did not tie her hands and feet nor
put a tape on her mouth anymore but she did not cry for help for fear that she might be killed;
besides, all the windows and doors were closed. And even if she shouted for help, nobody would hear
her. She was so afraid that if somebody would hear her and would be able to call the police, it was still
possible that as she was still inside the house, defendant might kill her. Besides, the defendant did not
leave that Sunday, ruling out her chance to call for help. At nighttime he slept with her again. (TSN,
Aug. 15, 1989, pp. 12-14)

On February 6, 1989, Monday, Karen was raped three times, once in the morning for thirty minutes
after a breakfast of biscuits; again in the afternoon; and again in the evening. At first, Karen did not
know that there was a window because everything was covered by a carpet, until defendant opened
the window for around fifteen minutes or less to let some air in, and she found that the window was
covered by styrofoam and plywood. After that, he again closed the window with a hammer and he put
the styrofoam, plywood, and carpet back. (Id., pp. 14-15)

That Monday evening, Karen had a chance to call for help, although defendant left but kept the door
closed. She went to the bathroom and saw a small window covered by styrofoam and she also spotted
a small hole. She stepped on the bowl and she cried for help through the hole. She cried: "Maawa no
po kayo so akin. Tulungan n'yo akong makalabas dito. Kinidnap ako!" Somebody heard her. It was a
woman, probably a neighbor, but she got angry and said she was "istorbo". Karen pleaded for help
and the woman told her to sleep and she will call the police. She finally fell asleep but no policeman
came. (TSN, Aug. 15, 1989, pp. 15-16)

She woke up at 6:00 o'clock the following morning, and she saw defendant in bed, this time sleeping.
She waited for him to wake up. When he woke up, he again got some food but he always kept the door
locked. As usual, she was merely fed with biscuit and coke. On that day, February 7, 1989, she was
again raped three times. The first at about 6:30 to 7:00 a.m., the second at about 8:30 — 9:00, and
the third was after lunch at 12:00 noon. After he had raped her for the second time he left bu t only for
a short while. Upon his return, he caught her shouting for help but he did not understand what she
was shouting about. After she was raped the third time, he left the house. (TSN, Aug. 15, 1989, pp. 16-
17) She again went to the bathroom and shouted for help. After shouting for about five minutes, she
heard many voices. The voices were asking for her name and she gave her name as Karen Salvacion.
After a while, she heard a voice of a woman saying they will just call the police. They were also telling
her to change her clothes. She went from the bathroom to the room but she did not change her clothes
being afraid that should the neighbors call for the police and the defendant see her in different
clothes, he might kill her. At that time she was wearing a T-shirt of the American because the latter
washed her dress. (Id., p. 16)

Afterwards, defendant arrived and he opened the door. He asked her if she had asked for help because
there were many policemen outside and she denied it. He told her to change her clothes, and she did
change to the one she was wearing on Saturday. He instructed her to tell the police that she left home
and willingly; then he went downstairs but he locked the door. She could hear people conversing but
she could not understand what they were saying. (Id., p. 19)

When she heard the voices of many people who were conversing downstairs, she knocked repeatedly
at the door as hard as she could. She heard somebody going upstairs and when the door was opened,
she saw a policeman. The policeman asked her name and the reason why she was there. She told him
she was kidnapped. Downstairs, he saw about five policemen in uniform and the defendant was
talking to them. "Nakikipag-areglo po sa mga pulis," Karen added. "The policeman told him to just
explain at the precinct. (Id., p. 20)

They went out of the house and she saw some of her neighbors in front of the house. They rode the car
of a certain person she called Kuya Boy together with defendant, the policeman, and two of her
neighbors whom she called Kuya Bong Lacson and one Ate Nita. They were brought to Sub-Station I
and there she was investigated by a policeman. At about 2:00 a.m., her father arrived, followed by her
mother together with some of their neighbors. Then they were brought to the second floor of the
police headquarters. (Id., p. 21)

At the headquarters, she was asked several questions by the investigator. The written statement she
gave to the police was marked as Exhibit A. Then they proceeded to the National Bureau of
Investigation together with the investigator and her parents. At the NBI, a doctor, a medico-legal
officer, examined her private parts. It was already 3:00 in the early morning of the following day
when they reached the NBI. (TSN, Aug. 15, 1989, p. 22) The findings of the medico-legal officer has
been marked as Exhibit B.

She was studying at the St. Mary's Academy in Pasay City at the time of the incident but she
subsequently transferred to Apolinario Mabini, Arellano University, situated along Taft Avenue,
because she was ashamed to be the subject of conversation in the school. She first applied for transfer
to Jose Abad Santos, Arellano University along Taft Avenue near the Light Rail Transit Station but
she was denied admission after she told the school the true reason for her transfer. The reason for
their denial was that they might be implicated in the case. (TSN, Aug. 15, 1989, p. 46)

xxx xxx xxx

After the incident, Karen has changed a lot. She does not play with her brother and sister anymore,
and she is always in a state of shock; she has been absent-minded and is ashamed even to go out of
the house. (TSN, Sept. 12, 1989, p. 10) She appears to be restless or sad, (Id., p. 11) The father prays
for P500,000.00 moral damages for Karen for this shocking experience which probably, she would
always recall until she reaches old age, and he is not sure if she could ever recover from this
experience. (TSN, Sept. 24, 1989, pp. 10-11)

Pursuant to an Order granting leave to publish notice of decision, said notice was published in the
Manila Bulletin once a week for three consecutive weeks. After the lapse of fifteen (15) days from the
date of the last publication of the notice of judgment and the decision of the trial court had become
final, petitioners tried to execute on Bartelli's dollar deposit with China Banking Corporation.
Likewise, the bank invoked Section 113 of Central Bank Circular No. 960.

Thus, petitioners decided to seek relief from this Court.

The issues raised and the arguments articulated by the parties boil down to two:

May this Court entertain the instant petition despite the fact that original jurisdiction in petitions for
declaratory relief rests with the lower court? Should Section 113 of Central Bank Circular No. 960 and
Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known as the Foreign Currency Deposit
Act be made applicable to a foreign transient?

Petitioners aver as heretofore stated that Section 113 of Central Bank Circular No. 960 providing that
"Foreign currency deposits shall be exempt from attachment, garnishm ent, or any other order or
process of any court, legislative body, government agency or any administrative body whatsoever."
should be adjudged as unconstitutional on the grounds that: 1.) it has taken away the right of
petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the
judgment rendered in petitioners' favor in violation of substantive due process guaranteed by the
Constitution; 2.) it has given foreign currency depositors an undue favor or a class privileg e in
violation of the equal protection clause of the Constitution; 3.) it has provided a safe haven for
criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil
liability for their wrongful acts by merely converting their money to a foreign currency and depositing
it in a foreign currency deposit account with an authorized bank; and 4.) The Monetary Board, in
issuing Section 113 of Central Bank Circular No. 960 has exceeded its delegated quasi-legislative
power when it took away: a.) the plaintiffs substantive right to have the claim sought to be enforced by
the civil action secured by way of the writ of preliminary attachment as granted by Rule 57 of the
Revised Rules of Court; b.) the plaintiffs substantive right to have the judgment credit satisfied by way
of the writ of execution out of the bank deposit of the judgment debtor as granted to the judgment
creditor by Rule 39 of the Revised Rules of Court, which is beyond its power to do so.

On the other hand, respondent Central Bank, in its Comment alleges that the Monetary Board in
issuing Section 113 of CB Circular No. 960 did not exceed its power or authority because the subject
Section is copied verbatim from a portion of R.A. No. 6426 as amended by P.D. 1246. Hence, it was
not the Monetary Board that grants exemption from attachment or garnishment to foreign currency
deposits, but the law (R.A. 6426 as amended) itself; that it does not violate the substantive due
process guaranteed by the Constitution because a.) it was based on a law; b.) the law seems to be
reasonable; c.) it is enforced according to regular methods of procedure; and d.) it applies to all
members of a class.

Expanding, the Central Bank said; that one reason for exempting the foreign currency deposits from
attachment, garnishment or any other order or process of any court, is to assure the development and
speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the
Philippines; that another reason is to encourage the inflow of foreign currency deposits into the
banking institutions thereby placing such institutions more in a position to properly channel the same
to loans and investments in the Philippines, thus directly contributing to the economic development
of the country; that the subject section is being enforced according to the regular methods of
procedure; and that it applies to all foreign currency deposits made by any person and therefore does
not violate the equal protection clause of the Constitution.

Respondent Central Bank further avers that the questioned provision is needed to promote the public
interest and the general welfare; that the State cannot just stand idly by while a considerable segment
of the society suffers from economic distress; that the State had to take some measures to encourage
economic development; and that in so doing persons and property may be subjected to some kinds of
restraints or burdens to secure the general welfare or public interest. Respondent Central Bank also
alleges that Rule 39 and Rule 57 of the Revised Rules of Court provide that some properties are
exempted from execution/attachment especially provided by law and R.A. No. 6426 as amended is
such a law, in that it specifically provides, among others, that foreign currency deposits shall be
exempted from attachment, garnishment, or any other order or process of any court, legislative body,
government agency or any administrative body whatsoever.

For its part, respondent China Banking Corporation, aside from giving reasons similar to that of
respondent Central Bank, also stated that respondent China Bank is not unmindful of the inhuman
sufferings experienced by the minor Karen E. Salvacion from the beastly hands of Greg Bartelli; that it
is only too willing to release the dollar deposit of Bartelli which may perhaps partly mitigate the
sufferings petitioner has undergone; but it is restrained from doing so in view of R.A. No. 6426 and
Section 113 of Central Bank Circular No. 960; and that despite the harsh effect of these laws on
petitioners, CBC has no other alternative but to follow the same.
This Court finds the petition to be partly meritorious.

Petitioner deserves to receive the damages awarded to her by the court. But this petition for
declaratory relief can only be entertained and treated as a petition for mandamus to require
respondents to honor and comply with the writ of execution in Civil Case No. 89-3214.

This Court has no original and exclusive jurisdiction over a petition for declaratory relief.2 However,
exceptions to this rule have been recognized. Thus, where the petition has far-reaching implications
and raises questions that should be resolved, it may be treated as one for mandamu s.3

Here is a child, a 12-year old girl, who in her belief that all Americans are good and in her gesture of
kindness by teaching his alleged niece the Filipino language as requested by the American, trustingly
went with said stranger to his apartment, and there she was raped by said American tourist Greg
Bartelli. Not once, but ten times. She was detained therein for four (4) days. This American tourist
was able to escape from the jail and avoid punishment. On the other hand, the child, having received a
favorable judgment in the Civil Case for damages in the amount of more than P1,000,000.00, which
amount could alleviate the humiliation, anxiety, and besmirched reputation she had suffered and may
continue to suffer for a long, long time; and knowing that this person who had wronged her has the
money, could not, however get the award of damages because of this unreasonable law. This
questioned law, therefore makes futile the favorable judgment and award of damages that she and her
parents fully deserve. As stated by the trial court in its decision,

Indeed, after hearing the testimony of Karen, the Court believes that it was undoubtedly a shocking
and traumatic experience she had undergone which could haunt her mind for a long, long time, the
mere recall of which could make her feel so humiliated, as in fact she had been actually humiliated
once when she was refused admission at the Abad Santos High School, Arellano University, where she
sought to transfer from another school, simply because the school authorities of the said High School
learned about what happened to her and allegedly feared that they might be implicated in the case.

xxx xxx xxx

The reason for imposing exemplary or corrective damages is due to the wanton and bestial manner
defendant had committed the acts of rape during a period of serious illegal detention of his hapless
victim, the minor Karen Salvacion whose only fault was in her being so naive and credulous to believe
easily that defendant, an American national, could not have such a bestial desire on her nor capable of
committing such a heinous crime. Being only 12 years old when that unfortunate incident happened,
she has never heard of an old Filipino adage that in every forest there is a
snake, . . . .4

If Karen's sad fate had happened to anybody's own kin, it would be difficult for him to fathom how the
incentive for foreign currency deposit could be more important than his child's rights to said award of
damages; in this case, the victim's claim for damages from this alien who had the gall to wrong a child
of tender years of a country where he is a mere visitor. This further illustrates the flaw in the
questioned provisions.

It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time when the country's
economy was in a shambles; when foreign investments were minimal and presumably, this was the
reason why said statute was enacted. But the realities of the present times show that the country has
recovered economically; and even if not, the questioned law still denies those entitled to due process
of law for being unreasonable and oppressive. The intention of the questioned law may be good when
enacted. The law failed to anticipate the iniquitous effects producing outright injustice and inequality
such as the case before us.

It has thus been said that —

But I also know,5 that laws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths
are disclosed and manners and opinions change with the change of circumstances, institutions must
advance also, and keep pace with the times. . . We might as well require a man to wear still the coat
which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous
ancestors.

In his Comment, the Solicitor General correctly opined, thus:

The present petition has far-reaching implications on the right of a national to obtain redress for a
wrong committed by an alien who takes refuge under a law and regulation promulgated for a purpose
which does not contemplate the application thereof envisaged by the alien. More specifically, the
petition raises the question whether the protection against attachment, garnishment or other court
process accorded to foreign currency deposits by PD No. 1246 and CB Circular No. 960 applies when
the deposit does not come from a lender or investor but from a mere transient or tourist who is not
expected to maintain the deposit in the bank for long.

The resolution of this question is important for the protection of nationals who are victimized in the
forum by foreigners who are merely passing through.

xxx xxx xxx

. . . Respondents China Banking Corporation and Central Bank of the Philippines refused to honor the
writ of execution issued in Civil Case No. 89-3214 on the strength of the following provision of Central
Bank Circular No. 960:

Sec. 113. Exemption from attachment. — Foreign currency deposits shall be exempt from attachment,
garnishment, or any other order or process of any court, legislative body, government agency or any
administrative body whatsoever.

Central Bank Circular No. 960 was issued pursuant to Section 7 of Republic Act No. 6426:

Sec. 7. Rules and Regulations. The Monetary Board of the Central Bank shall promulgate such rules
and regulations as may be necessary to carry out the provisions of this Act which shall take effect after
the publication of such rules and regulations in the Official Gazette and in a newspaper of national
circulation for at least once a week for three consecutive weeks. In case the Central Bank promulgates
new rules and regulations decreasing the rights of depositors, the rules and regulations at the time the
deposit was made shall govern.

The aforecited Section 113 was copied from Section 8 of Republic Act NO. 6426, as amended by P.D.
1246, thus:

Sec. 8. Secrecy of Foreign Currency Deposits. — All foreign currency deposits authorized under this
Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized
under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely
confidential nature and, except upon the written permission of the depositor, in no instance shall such
foreign currency deposits be examined, inquired or looked into by any person, government official,
bureau or office whether judicial or administrative or legislative or any other entity whether public or
private: Provided, however, that said foreign currency deposits shall be exempt from attachment,
garnishment, or any other order or process of any court, legislative body, government agency or any
administrative body whatsoever.

The purpose of PD 1246 in according protection against attachment, garnishment and other court
process to foreign currency deposits is stated in its whereases, viz.:

WHEREAS, under Republic Act No. 6426, as amended by Presidential Decree No. 1035, certain
Philippine banking institutions and branches of foreign banks are authorized to accept deposits in
foreign currency;
WHEREAS, under the provisions of Presidential Decree No. 1034 authorizing the establishment of an
offshore banking system in the Philippines, offshore banking units are also authorized to receive
foreign currency deposits in certain cases;

WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit
System and the Offshore Banking System in the Philippines, certain incentives were provided for
under the two Systems such as confidentiality of deposits subject to certain exceptions and tax
exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or
business in the Philippines;

WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency
deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would
better encourage the inflow of foreign currency deposits into the banking institutions authorized to
accept such deposits in the Philippines thereby placing such institutions more in a position to
properly channel the same to loans and investments in the Philippines, thus directly contributing to
the economic development of the country;

Thus, one of the principal purposes of the protection accorded to foreign currency deposits is "to
assure the development and speedy growth of the Foreign Currency Deposit system and the Offshore
Banking in the Philippines" (3rd Whereas).

The Offshore Banking System was established by PD No. 1034. In turn, the purposes of PD No. 1034
are as follows:

WHEREAS, conditions conducive to the establishment of an offshore banking system, such as

political stability, a growing economy and adequate communication facilities, among others, exist in
the Philippines;

WHEREAS, it is in the interest of developing countries to have as wide access as possible to the
sources of capital funds for economic development;

WHEREAS, an offshore banking system based in the Philippines will be advantageous and beneficial
to the country by increasing our links with foreign lenders, facilitating the flow of desired investments
into the Philippines, creating employment opportunities and expertise in international finance, and
contributing to the national development effort.

WHEREAS, the geographical location, physical and human resources, and other positive factors
provide the Philippines with the clear potential to develop as another financial center in Asia;

On the other hand, the Foreign Currency Deposit system was created by PD. N o. 1035. Its purposes
are as follows:

WHEREAS, the establishment of an offshore banking system in the Philippines has been authorized
under a separate decree;

WHEREAS, a number of local commercial banks, as depository bank under the Foreign Currency
Deposit Act (RA No. 6426), have the resources and managerial competence to more actively engage in
foreign exchange transactions and participate in the grant of foreign currency loans to resident
corporations and firms;

WHEREAS, it is timely to expand the foreign currency lending authority of the said depository banks
under RA 6426 and apply to their transactions the same taxes as would be applicable to transaction of
the proposed offshore banking units;

It is evident from the above [Whereas clauses] that the Offshore Banking System and the Foreign
Currency Deposit System were designed to draw deposits from foreign lenders and investors (Vide
second Whereas of PD No. 1034; third Whereas of PD No. 1035). It is these deposits that are induced
by the two laws and given protection and incentives by them.
Obviously, the foreign currency deposit made by a transient or a tourist is not the kind of deposit
encouraged by PD Nos. 1034 and 1035 and given incentives and protection by said laws because such
depositor stays only for a few days in the country and, therefore, will maintain his deposit in the bank
only for a short time.

Respondent Greg Bartelli, as stated, is just a tourist or a transient. He deposited his dollars with
respondent China Banking Corporation only for safekeeping during his temporary stay in the
Philippines.

For the reasons stated above, the Solicitor General thus submits that the dollar deposit of respondent
Greg Bartelli is not entitled to the protection of Section 113 of Central Bank Circular N o. 960 and PD
No. 1246 against attachment, garnishment or other court processes.6

In fine, the application of the law depends on the extent of its justice. Eventually, if we rule that the
questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment,
garnishment, or any other order or process of any court, legislative body, government agency or any
administrative body whatsoever, is applicable to a foreign transient, injustice would result especially
to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of the
New Civil Code which provides that "in case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to prevail. "Ning uno non deue
enriquecerse tortizeramente con dano de otro." Simply stated, when the statute is silent or
ambiguous, this is one of those fundamental solutions that would respond to the vehement urge of
conscience. (Padilla vs. Padilla, 74 Phil. 377).

It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as a
device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the expense of
the innocent.

Call it what it may — but is there no conflict of legal policy here? Dollar against Peso? Upholding the
final and executory judgment of the lower court against the Central Bank Circular protecting the
foreign depositor? Shielding or protecting the dollar deposit of a transient alien depositor against
injustice to a national and victim of a crime? This situation calls for fairness against legal tyranny.

We definitely cannot have both ways and rest in the belief that we have served the ends of justice.

IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No. 960 and PD No. 1246, insofar
as it amends Section 8 of R.A. No. 6426 are hereby held to be INAPPLICABLE to this case because of
its peculiar circumstances. Respondents are hereby REQUIRED to COMPLY with the writ of
execution issued in Civil Case No. 89-3214, "Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by
Branch CXLIV, RTC Makati and to RELEASE to petitioners the dollar deposit of respondent Greg
Bartelli y Northcott in such amount as would satisfy the judgment.

SO ORDERED
G.R. No. L-42050-66 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF
MANILA, BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L.
GARCIA, SIMEON BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO,
ROMEO L. SUGAY, FEDERICO T. DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR.,
ARMANDO L. DIZON, ROGELIO B. PARENO, RODRIGO V. ESTRADA, ALFREDO A.
REYES, JOSE A. BACARRA, REYNALDO BOGTONG, and EDGARDO M. MENDOZA,
respondents.

G.R. No. L-46229-32 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH
XVIII, and REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y
ROQUE and ALFREDO VERSOZA, respondents.

G.R. No. L-46313-16 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH
XVIII, and JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO
ISAGAN Y FRANCISCO and BEN CASTILLO Y UBALDO, respondents.

G.R. No. L-46997 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of
Samar, and PANCHITO REFUNCION, respondents.

MUÑOZ PALMA, J.:

These twenty-six (26) Petitions for Review filed by the People of the Philippines represented,
respectively, by the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar, and
joined by the Solicitor General, are consolidated in this one Decision as they involve one basic
question of law.

These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance
of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of First Instance
of Manila, Branch XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of First
Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1 Petition).

Before those courts, Informations were filed charging the respective accused with "illegal possession
of deadly weapon" in violation of Presidential Decree No. 9. On a motion to quash filed by the
accused, the three Judges mentioned above issued in the respective cases filed before them — the
details of which will be recounted below — an Order quashing or dismissing the Informations, on a
common ground, viz, that the Information did not allege facts which constitute the offense penalized
by Presidential Decree No. 9 because it failed to state one essential element of the crime.

Thus, are the Informations filed by the People sufficient in form and substance to constitute the
offense of "illegal possession of deadly weapon" penalized under Presidential Decree (PD for short)
No. 9? This is the central issue which we shall resolve and dispose of, all other corollary matters not
being indispensable for the moment.
A — The Information filed by the People —

1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows:

THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN,

accused.

Crim. Case No. 19639

VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081

INFORMATION

The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of paragraph 3,

Presidential Decree No. 9 of Proclamation 1081, committed as follows:

That on or about the 14 th day of December, 1974, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully, feloniously and knowingly have in his possession and under
his custody and control one (1) carving knife with a blade of 6-½ inches and a wooden handle of 5-1/4
inches, or an overall length of 11-¾ inches, which the said accused carried outside of his residence,
the said weapon not being used as a tool or implem ent necessary to earn his livelihood nor being used
in connection therewith.

Contrary to law. (p. 32, rollo of L-42050-66)

The other Informations are similarly worded except for the name of the accused, the date and place of
the commission of the crime, and the kind of weapon involved.

2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren
follows:

THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REY NALDO LAQUI Y AQUINO, accused.

CRIM. CASE NO. 29677

VIOL. OF PAR. 3,

PD 9 IN REL. TO LOI

No. 266 of the Chief

Executive dated April 1, 1975

INFORMATION

The undersigned accuses REY NALDO LAQUI Y AQUINO of a VIOLATION OF PARAGRAPH 3,

PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction No. 266 of the Chief Executive
dated April 1, 1975, committed as follows:

That on or about the 28 th day of January, 1977, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and knowingly carry outside of his residence a bladed and
pointed weapon, to wit: an ice pick with an overall length of about 8½ inches, the same not being
used as a necessary tool or implement to earn his livelihood nor being used in connection therewith.

Contrary to law. (p. 14, rollo of L-46229-32)

The other Informations are likewise similarly worded except for the name of the accused, the date and
place of the commission of the crime, and the kind of weapon involved.
3. In L-46997, the Information before the Court of First Instance of Samar is quoted hereunder:

PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused.

CRIM. CASE NO. 933

For:

ILLEGAL POSSESSION OF

DEADLY WEAPON

(VIOLATION OF PD NO. 9)

INFORMATION

The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO REFUNCION of the
crime of ILLEGAL POSSESSION OF DEADLY WEAPON or VIOLATION OF PD NO. 9 issued by the
President of the Philippines on Oct. 2, 1972, pursuant to Proclamation No. 1081 dated Sept. 21 and 23,
1972, committed as follows:

That on or about the 6th day of October, 1976, in the evening at Barangay Barruz, Municipality of
Matuginao, Province of Samar Philippines, and within the jurisdiction of this Honorabe Court, the
abovenamed accused, knowingly, wilfully, unlawfully and feloniously carried with him outside of his
residence a deadly weapon called socyatan, an instrument which from its very nature is no such as
could be used as a necessary tool or instrument to earn a livelihood, which act committed by the
accused is a Violation of Presidential Decree No. 9.

CONTRARY TO LAW. (p. 8, rollo of L-46997)

B. — The Orders of dismissal —

In dismissing or quashing the Informations the trial courts concurred with the submittal of the
defense that one essential element of the offense charged is missing from the Information, viz: that
the carrying outside of the accused's residence of a bladed, pointed or blunt weapon is in furtherance
or on the occasion of, connected with or related to subversion, insurrection, or rebellion, organized
lawlessness or public disorder.

1. Judge Purisima reasoned out, inter alia, in this manner:

... the Court is of the opinion that in order that possession of bladed weapon or the like outside
residence may be prosecuted and tried under P.D. No. 9, the information must specifically allege that
the possession of bladed weapon charged was for the purpose of abetting, or in furtheranc e of the
conditions of rampant criminality, organized lawlessness, public disorder, etc. as are contemplated
and recited in Proclamation No. 1081, as justification therefor. Devoid of this specific allegation, not
necessarily in the same words, the information is not complete, as it does not allege sufficient facts to
constitute the offense contemplated in P.D. No. 9. The information in these cases under consideration
suffer from this defect.

xxx xxx xxx

And while there is no proof of it before the Court, it is not difficult to believe the murmurings of
detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9,
that more than ever before, policemen - of course not all can be so heartless — now have in their
hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being
sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which
only God knows where it came from. Whereas before martial law an extortion-minded peace officer
had to have a stock of the cheapest paltik, and even that could only convey the coercive message of
one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even
in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik.

For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its necessity can
never be assailed. But it seems it is back-firing, because it is too hot in the hands of policemen who are
inclined to backsliding.

The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal and the
conscience of the Court, and hence this resolution, let alone technical legal basis, is prompted by the
desire of this Court to apply said checkvalves. (pp. 55-57, rollo of L-42050-66)

2. Judge Maceren in turn gave his grounds for dismissing the charges as follows:

xxx xxx xxx

As earlier noted the "desired result" sought to be attained by Proclamation No. 1081 is the
maintenance of law and order throughout the Philippines and the prevention and suppression of all
forms of lawless violence as well as any act of insurrection or rebellion. It is therefore reasonable to
conclude from the foregoing premises that the carrying of bladed, pointed or blunt weapons outside of
one's residence which is made unlawful and punishable by said par. 3 of P.D. No. 9 is one that abets
subversion, insurrection or rebellion, lawless violence, criminality, chaos and public disorder or is
intended to bring about these conditions. This conclusion is further strengthened by the fact that all
previously existing laws that also made the carrying of similar weapons punishable have not been
repealed, whether expressly or impliedly. It is noteworthy that Presidential Decree No. 9 does not
contain any repealing clause or provisions.

xxx xxx xxx

The mere carrying outside of one's residence of these deadly weapons if not concealed in one's person
and if not carried in any of the aforesaid specified places, would appear to be not unlawful and
punishable by law.

With the promulgation of Presidential Decree No. 9, however, the prosecution, through Assistant
Fiscal Hilario H. Laqui, contends in his opposition to the motion to quash, that this act is now made
unlawful and punishable, particularly by paragraph 3 thereof, regardless of the intention of the person
carrying such weapon because the law makes it "mala prohibita". If the contention of the prosecution
is correct, then if a person happens to be caught while on his way home by law enforcement officers
carrying a kitchen knife that said person had just bought from a store in order that the same may be
used by one's cook for preparing the meals in one's home, such person will be liable for punishment
with such a severe penalty as imprisonment from five to ten years under the decree. Such person
cannot claim that said knife is going to be used by him to earn a livelihood because he intended it
merely for use by his cook in preparing his meals.

This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted and applied
in the manner that that the prosecution wants it to be done. The good intentions of the President in
promulgating this decree may thus be perverted by some unscrupulous law enforcement officers. It
may be used as a tool of oppression and tyranny or of extortion.

xxx xxx xxx

It is therefore the considered and humble view of this Court that the act which the President intended
to make unlawful and punishable by Presidential Decree No. 9, particularly by paragraph 3 thereof, is
one that abets or is intended to abet subversion, rebellion, insurrection, lawless violence, criminality,
chaos and public disorder. (pp. 28-30, rollo of L-46229-32)
3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the Information
filed before him, thus:

... We believe that to constitute an offense under the aforcited Presidential decree, the same should be
or there should be an allegation that a felony was committed in connection or in furtherance of
subversion, rebellion, insurrection, lawless violence and public disorder. Precisely Proclamation No.
1081 declaring a state of martial law throughout the country was issued because of wanton
destruction to lives and properties widespread lawlessness and anarchy. And in order to restore the
tranquility and stability of the country and to secure the people from violence anti loss of lives in the
quickest possible manner and time, carrying firearms, explosives and deadly weapons without a
permit unless the same would fall under the exception is prohibited. This conclusion becomes more
compelling when we consider the penalty imposable, which is from five years to ten years. A strict
enforcement of the provision of the said law would mean the imposition of the Draconian penalty
upon the accused.

xxx xxx xxx

It is public knowledge that in rural areas, even before and during martial law, as a matter of status
symbol, carrying deadly weapons is very common, not necessarily for committing a crime nor as their
farm implement but for self-preservation or self-defense if necessity would arise specially in going to
and from their farm. (pp. 18-19, rollo of L-46997)

In most if not all of the cases, the orders of dismissal were given before arraignment of the accused. In
the criminal case before the Court of (First Instance of Samar the accused was arraigned but at the
same time moved to quash the Information. In all the cases where the accused were under arrest, the
three Judges ordered their immediate release unless held on other charges.

C. — The law under which the Informations in question were filed by the People.

As seen from the Informations quoted above, the accused are charged with illegal possession of deadly
weapon in violation of Presidential Decree No. 9, Paragraph 3.

We quote in full Presidential Decree No. 9, to wit:

PRESIDENTIAL DECREE NO. 9

DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER 22, 1972,
AND SEPTEMBER 23, 1972, RESPECTIVELY , TO BE UNLAWFUL AND PROVIDING PENALTIES
THEREFORE.

WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines has been
placed under a state of martial law;

WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated September 22, 1972
and General Order No. 7 dated September 23, 1972, have been promulgated by me;

WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and public
disorder mentioned in the aforesaid Proclamation No. 1081 are committed and abetted by the use of
firearms, explosives and other deadly weapons;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of

the Philippines, in older to attain the desired result of the aforesaid Proclamation No. 1081 and
General Orders Nos. 6 and 7, do hereby order and decree that:

1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the violator shall, upon
conviction suffer:
(a) The mandatory penalty of death by a firing squad or electrocution as a Military,
Court/Tribunal/Commission may direct, it the firearm involved in the violation is unlicensed and is
attended by assault upon, or resistance to persons in authority or their agents in the performance of
their official functions resulting in death to said persons in authority or their agent; or if such
unlicensed firearm is used in the commission of crimes against persons, property or chastity causing
the death of the victim used in violation of any other General Orders and/or Letters of Instructions
promulgated under said Proclamation No. 1081:

(b) The penalty of imprisonment ranging from twenty years to life imprisonment as a Military
Court/Tribunal/commission may direct, when the violation is not attended by any of the
circumstances enumerated under the preceding paragraph;

(c) The penalty provided for in the preceding paragraphs shall be imposed upon the owner, president,
manager, members of the board of directors or other responsible officers of any public or private
firms, companies, corporations or entities who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity concerned to be used in violation of said General
Orders Nos. 6 and 7.

2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades and other
explosives, including, but not limited to, "pill box bombs," "molotov cocktail bombs," "fire bombs," or
other incendiary device consisting of any chemical, chemical compound, or detonating agents
containing combustible units or other ingredients in such proportion, quantity, packing, or bottling
that ignites by fire, by friction, by concussion, by percussion, or by detonation of all or part of the
compound or mixture which may cause such a sudden generation of highly heated gases that the
resultant gaseous pressures are capable of producing destructive effects on continguous objects or of
causing injury or death of a person; and any person convicted thereof shall be punished by
imprisonment ranging from ten to fifteen years as a Military Court/Tribunal/Commission may direct.

3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon such as "fan knife,"
"spear," "dagger," "bolo," "balisong," "barong," "kris," or club, except where such articles are being
used as necessary tools or implements to earn a livelihood and while being used in connection
therewith; and any person found guilty thereof shall suffer the penalty of imprisonment ranging from
five to ten years as a Military Court/Tribunal/Commission may direct.

4. When the violation penalized in the preceding paragraphs 2 and 3 is committed during the
commission of or for the purpose of committing, any other crime, the penalty shall be imposed upon
the offender in its maximum extent, in addition to the penalty provided for the particular offenses
committed or intended to be committed.

Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen hundred and
seventy-two.

(SGD) FERDINAND E. MARCOS

President

Republic of the Philippines

D. — The arguments of the People —

In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City Fiscal
of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned orders of
dismissal, the main argument advanced on the issue now under consideration is that a perusal of
paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive activities; that
the act proscribed is essentially a malum prohibitum penalized for reasons of public policy.1

The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the
accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily
perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection
with the commission of the crime of subversion or the like, but also that of criminality in general, that
is, to eradicate lawless violence which characterized pre-martial law days. It is also argued that the
real nature of the criminal charge is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been violated but by the actual recital
of facts in the complaint or information.2

E. — Our Ruling on the matter —

1. It is a constitutional right of any person who stands charged in a criminal prosecution to be

informed of the nature and cause of the accusation against him.3

Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a
complaint or information to be sufficient it must, inter alia state the designation of the offense by the
statute, and the acts or omissions complained of as constituting the offense. This is essential to avoid
surprise on the accused and to afford him the opportunity to prepare his defense accordingly. 4

To comply with these fundamental requirements of the Constitution and the Rules on Criminal
Procedure, it is imperative for the specific statute violated to be designated or mentioned 4 in the
charge. In fact, another compelling reason exists why a specification of the statute violated is essential
in these cases. As stated in the order of respondent Judge Maceren the carrying of so-called "deadly
weapons" is the subject of another penal statute and a Manila city ordinance. Thus, Section 26 of Act
No. 1780 provides:

Section 26. It should be unlawful for any person to carry concealed about his person any bowie knife,
dirk dagger, kris, or other deadly weapon: ... Any person violating the provisions of this section shall,
upon conviction in a court of competent jurisdiction, be punished by a fine not exceeding five hundred
pesos, or by imprisonment for a period not exceeding six months, or both such fine and
imprisonment, in the discretion of the court.

Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took effect on
December 4, 1957, in turn penalizes with a fine of not more than P200.00 or imprisonment for not
more than one months, or both, at the discretion of the court, anyone who shall carry concealed in his
person in any manner that would disguise its deadly character any kind of firearm, bowie knife, or
other deadly weapon ... in any public place. Consequently, it is necessary that the particular law
violated be specified as there exists a substantial difference between the statute and city ordinance on
the one hand and P.D. 9 (3) on the other regarding the circumstances of the commission of the crime
and the penalty imposed for the offense.

We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed
repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision, and repeal by
implication is not favored. 6 This principle holds true with greater force with regards to penal statutes
which as a rule are to be construed strictly against the state and liberally in favor of the accused. 7 In
fact, Article 7 of the New Civil Code provides that laws are repealed only by subsequent ones and their
violation or non- observance shall not be excused by disuse, or custom or practice to the contrary.

Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a
police officer or a prosecuting fiscal, under the statute, or the city ordinance, or the presidential
decree. That being the case, the right becomes more compelling for an accused to be confronted with
the facts constituting the essential elements of the offense charged against him, if he is not to become
an easy pawn of oppression and harassment, or of negligent or misguided official action — a fear
understandably shared by respondent Judges who by the nature of their judicial functions are daily
exposed to such dangers.

2. In all the Informations filed by petitioner the accused are charged in the caption as well as in the
body of the Information with a violation of paragraph 3, P.D. 9. What then are the elements of the
offense treated in the presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside one's residence of any
bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement for a livelihood; and
second, that the act of carrying the weapon was either in furtherance of, or to abet, or in connection
with subversion, rebellion, insurrection, lawless violence, criminality, chaos, or public disorder.

It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of
the scope of the statute or the city ordinance mentioned above. In other words, a simple act of
carrying any of the weapons described in the presidential decree is not a criminal offense in itself.
What makes the act criminal or punishable under the decree is the motivation behind it. Without that
motivation, the act falls within the purview of the city ordinance or some statute when the
circumstances so warrant.

Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid construction
given to P.D. 9(3).

3. The position taken by petitioner that P.D. 9(3) covers one and all situations where a person carries
outside his residence any of the weapons mentioned or described in the decree irrespective of
motivation, intent, or purpose, converts these cases into one of "statutory construction." That there is
ambiguity in the presidential decree is manifest from the conflicting views which arise from its
implementation. When ambiguity exists, it becomes a judicial task to construe and interpret the true
meaning and scope of the measure, guided by the basic principle that penal statutes are to be
construed and applied liberally in favor of the accused and strictly against the state.

4. In the construction or interpretation of a legislative measure — a presidential decree in these cases

— the primary rule is to search for and determine the intent and spirit of the law. Legislative intent is
the controlling factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice Claudio
Teehankee, whatever is within the spirit of a statute is within the statute, and this has to be so if strict
adherence to the letter would result in absurdity, injustice and contradictions. 8

There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).

First, the presence of events which led to or precipitated the enactment of P.D. 9. These events are
clearly spelled out in the "Whereas" clauses of the presidential decree, thus: (1) the state of martial
law in the country pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired result of
Proclamation 1081 as well as General Orders Nos. 6 and 7 which are particularly mentioned in P.D. 9;
and (3) the alleged fact that subversion, rebellion, insurrection, lawless violence, criminality, chaos,
aid public disorder mentioned in Proclamation 1081 are committed and abetted by the use of firearms
and explosives and other deadly weapons.

The Solicitor General however contends that a preamble of a statute usually introduced by the word
"whereas", is not an essential part of an act and cannot enlarge or confer powers, or cure inherent
defects in the statute (p. 120, rollo of L-42050-66); that the explanatory note or enacting clause of the
decree, if it indeed limits the violation of the decree, cannot prevail over the text itself inasmuch as
such explanatory note merely states or explains the reason which prompted the issuance of the
decree. (pp. 114-115, rollo of 46997)

We disagree with these contentions. Because of the problem of determining what acts fall within the
purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this can
be found among others in the preamble or, whereas" clauses which enumerate the facts or events
which justify the promulgation of the decree and the stiff sanctions stated therein.

A "preamble" is the key of the statute, to open the minds of the makers as to the mischiefs which are
to be remedied, and objects which are to be accomplished, by the provisions of the statute." (West
Norman Timber v. State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble"; emphasis
supplied)

While the preamble of a statute is not strictly a part thereof, it may, when the statute is in itself
ambiguous and difficult of interpretation, be resorted to, but not to create a doubt or uncertainty
which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and
Phrases, "Preamble")

In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to state that
'(L)egislative intent must be ascertained from a consideration of the statute as a whole, and not of an
isolated part or a particular provision alone. This is a cardinal rule of statutory construction. For
taken in the abstract, a word or phrase might easily convey a meaning quite different from the one
actually intended and evident when the word or phrase is considered with those with which it is
associated. Thus, an apparently general provision may have a limited application if read together with
other provisions. 9

Second, the result or effects of the presidential decree must be within its reason or intent.

In the paragraph immediately following the last "Whereas" clause, the presidential decree states:

NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed Forces of

the Philippines, in order to attain the desired result of the aforesaid Proclamation No. 1081 and
General Orders Nos. 6 and 7, do hereby order and decree that:

xxx xxx xxx

From the above it is clear that the acts penalized in P.D. 9 are those related to the desired result of
Proclamation 1081 and General Orders Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms
and therefore have no relevance to P.D. 9(3) which refers to blunt or bladed weapons. With respect to
Proclamation 1081 some of the underlying reasons for its issuance are quoted hereunder:

WHEREAS, these lawless elements having taken up arms against our duly constituted government
and against our people, and having committed and are still committing acts of armed insurrection
and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage,
plunder, looting, arsons, destruction of public and private buildings, and attacks against innocent and
defenseless civilian lives and property, all of which activities have seriously endangered and continue
to endanger public order and safety and the security of the nation, ...

xxx xxx xxx

WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos
and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces
of our duly constituted government and the New People's Army and their satellite organizations
because of the unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts
of terror, deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders and
depredations committed and being committed by the aforesaid lawless elements who have pledged to
the whole nation that they will not stop their dastardly effort and scheme until and unless they have
fully attained their primary and ultimate purpose of forcibly seizing political and state power in this
country by overthrowing our present duly constituted government, ... (See Book I, Vital Documents
on the Declaration of Martial Law in the Philippines by the Supreme Court of the Philippines, pp. 13-
39)

It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected
with or related to the afore-quoted desired result of Proclamation 1081 that is within the intent of P.D.
9(3), and nothing else.

Statutes are to be construed in the light of purposes to be achieved and the evils sought to be
remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited in LVN Pictures v. Philippine
Musicians Guild, 110 Phil. 725, 731; emphasis supplied)

When construing a statute, the reason for its enactment should be kept in mind, and the statute
should be construed with reference to its intended scope and purpose. (Statutory Construction by E.T.
Crawford, pp. 604-605, cited in Commissioner of Internal Revenue v. Filipinas Compania de Seguros,
107 Phil. 1055, 1060; emphasis supplied)

5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the measure
if a strict adherence to the letter of the paragraph is followed.

It is a salutary principle in statutory construction that there exists a valid presumption that
undesirable consequences were never intended by a legislative measure, and that a construction of
which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil, and injurious consequences.9-a

It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was no
intent to work a hardship or an oppressive result, a possible abuse of authority or act of oppression,
arming one person with a weapon to impose hardship on another, and so on.10

At this instance We quote from the order of Judge Purisima the following:

And while there is no proof of it before the Court, it is not difficult to believe the murmurings of
detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9,
that more than ever before, policemen - of course not all can be so heartless — now have in their
hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being
sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which
only God knows where it came from. Whereas before martial law an extortion-minded peace officer
had to have a stock of the cheapest paltik, and even that could only convey the coercive message of
one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even
in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik. (pp. 72-73, rollo L-42050-66)

And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in
absurdity at times. To his example We may add a situation where a law -abiding citizen, a lawyer by
profession, after gardening in his house remembers to return the bolo used by him to his neighbor
who lives about 30 meters or so away and while crossing the street meets a policeman. The latter
upon seeing the bolo being carried by that citizen places him under arrest and books him for a
violation of P.D. 9(3). Could the presidential decree have been conceived to produce such absurd,
unreasonable, and insensible results?

6. Penal statutes are to be construed strictly against the state and liberally in favor of an accused.

American jurisprudence sets down the reason for this rule to be "the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited." 11 The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts.12

Our own decisions have set down the same guidelines in this manner, viz:

Criminal statutes are to be construed strictly. No person should be brought within their terms who is
not clearly within them, nor should any act be pronounced criminal which is not made clearly so by
the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246)

The rule that penal statutes are given a strict construction is not the only factor controlling the
interpretation of such laws, instead, the rule merely serves as an additional, single factor to be
considered as an aid in determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684,
692)

F. The Informations filed by petitioner are fatally defective.

The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order tha t
the latter may constitute a sufficiently valid charged. The sufficiency of an Information is determined
solely by the facts alleged therein.13 Where the facts are incomplete and do not convey the elements
of the crime, the quashing of the accusation is in order.

Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the
complaint or information when the facts charged do not constitute an offense.

In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an
unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that
the judgment was rendered knowing it to be unjust, is fatal. 14

In People v. Y adao, 1954, this Court through then Justice Cesar Bengzon who later became Chief
Justice of the Court affirmed an order of the trial court which quashed an Information wherein the
facts recited did not constitute a public offense as defined in Section 1, Republic Act 145. 15

G. The filing of these Petitions was unnecessary because the People could have availed itself of other
available remedies below.

Pertinent provisions of the Rules of Court follow:

Rule 117, Section 7. Effect of sustaining the motion to quash. — If the motion to quash is sustained the
court may order that another information be filed. If such order is made the defendant, if in custody,
shall remain so unless he shall be admitted to bail. If such order is not made or if ha ving been made
another information is not filed withuntime to be specified in the order, or within such further time as
the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom,
unless he is in custody on some other charge.

Rule 110, Section 13. Amendment. — The information or complaint may be amended, in substance or
form, without leave of court, at any time before the defendant pleads; and thereafter and during the
trial as to all matters of form, by leave and at the discretion of the court, when the same can be done
without prejudice to the rights of the defendant.

xxx xxx xxx

Two courses of action were open to Petitioner upon the quashing of the Informations in these cases,
viz:

First, if the evidence on hand so warranted, the People could have filed an amended Information to
include the second element of the offense as defined in the disputed orders of respondent Judges. We
have ruled that if the facts alleged in the Information do not constitute a punisha ble offense, the case
should not be dismissed but the prosecution should be given an opportunity to amend the
Information.16

Second, if the facts so justified, the People could have filed a complaint either under Section 26 of Act
No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No. 3928,
especially since in most if not all of the cases, the dismissal was made prior to arraignment of the
accused and on a motion to quash.

Section 8. Rule 117 states that:

An order sustaining the motion to quash is not a bar to another prosecution for the same offense
unless the motion was based on the grounds specified in section 2, subsections (f) and (h) of this rule.

Under the foregoing, the filing of another complaint or Information is barred only when the criminal
action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for
reasons of double jeopardy. (ibid., [h])

As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all these
cases should new complaints be filed against them, is a matter We need not resolve for the present.
H. — We conclude with high expectations that police authorities and the prosecuting arm of the
government true to the oath of office they have taken will exercise utmost circumspection and good
faith in evaluating the particular circumstances of a case so as to reach a fair and just conclusion if a
situation falls within the purview of P.D. 9(3) and the prosecution under said decree is warranted and
justified. This obligation becomes a sacred duty in the face of the severe penalty imposed for the
offense.

On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to the City
Fiscal of Manila on October 15, 1975, written for the Secretary, now Minister of Justice, where he
stated the following:

In any case, please study well each and every case of this nature so that persons accused of carrying
bladed weapons, specially those whose purpose is not to subvert the duly constituted authorities, may
not be unduly indicted for the serious offenses falling under P.D. No. 9.17

Y es, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is
however a judicial task and prerogative to determine if official action is within the spirit and letter of
the law and if basic fundamental rights of an individual guaranteed by the Constitution are not
violated in the process of its implementation. We have to face the fact that it is an unwise and unjust
application of a law, necessary and justified under prevailing circumstances, which renders the
measure an instrument of oppression and evil and leads the citizenry to lose their faith in their
government.

WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent
Judges dismissing or quashing the Information concerned, subject however to Our observations made
in the preceding pages 23 to 25 of this Decision regarding the right of the State or Petitioner herein to
file either an amended Information under Presidential Decree No. 9, paragraph 3, or a new one under
other existing statute or city ordinance as the facts may warrant.

Without costs.

SO ORDERED.

G.R. No. L-9274 February 1, 1957

RUFINO LOPEZ & SONS, INC., petitioner,

vs.
THE COURT OF TAX APPEALS, respondent.

MONTEMAY OR, J.:

Petitioner appellant Rufino Lopez & Sons, Inc. is appealing from a resolution of the Court of Tax
Appeals dismissing its appeal from a decision of the Collector of Customs for the Port of Manila,
assessing additional fees on petitioner for a certain importation of wire netting. The facts are simple
and undisputed. Lopez & Sons imported hexagonal wire netting from Hamburg, Germany. The
Manila Collector of Customs assessed the corresponding customs duties on the importation on the
basis of consular and supplies invoices. Said customs duties were paid and the shipments were
released. Subsequently, however, and freight of said wire netting and as a result of the reassessment,
additional customs duties in the amount of P1,966.59 were levied and imposed upon petitioner.
Failing to secure a reconsideration of the reassessment and levy of additional custom s duties, Lopez &
Sons appealed to the Court of Tax Appeals. Acting upon a motion to dismiss the appeal, filed by the
Solicitor General on the ground of lack of jurisdiction, the Tax Court, by its resolution of May 23,
1955, dismissed the appeal on the ground that it had no jurisdiction to review decisions of the
Collector of Customs of Manila, citing section 7 of Republic Act No. 1125, creating said tax court. From
said resolution of dismissal, Lopez & Sons appealed to us, seeking a reversal of said resolu tion of
dismissal.
For purposes of reference, we are reproducing section 7 of Republic Act No. 1125 relied upon by the
Tax Court and the Solicitor General, as well as Section 11 of the same Act invoked by the petitioner:

Sec. 7. Jurisdiction. — The Court of Tax Appeals shall exercise exclusive appellate jurisdiction to
review by appeal, as herein provided —

(1) Decisions of the Collector of Internal Revenue in cases involving disputed assessments, refunds of
internal revenue taxes, fees or other charges, penalties imposed in relation thereto, or other matters
arising under the National Internal Revenue Code or other law or part of law administered by the
Bureau of Internal Revenue;

(2) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or
other money charges, seizure, detention or release of property affected; fines, forfeitures or other
penalties imposed in relation thereto, or other matters arising under the Customs Law or other law or
part of law administered by the Bureau of Customs; and

(3) Decisions of provincial or city Board of Assessment Appeals in case involving the assessment and
taxation of real property or other matters arising under the assessment Law, including rules and
regulations relative thereto.

xxx xxx xxx

SEC. 11. Who may appeal; effect of appeal. — Any person, association or corporation adversely by a
decision or ruling of the Collector of Internal Revenue, the Collector of Customs or any provincial or
city Board of Assessment Appeals may file an appeal in the Court of Tax Appeals within thirty days
after the receipt of such decision or ruling.

No appeal taken to the Court of Tax Appeals from the decision of the Collector of Internal Revenue or
the Collector of the Customs shall suspend the payment, levy, distraint, and/or sale of any property of
the taxpayer for the satisfaction of his tax liability as provided by existing law: Provided, however, that
when in the opinion of the Court the collection by the Bureau of Internal Revenue or the
Commissioner of Customs may jeopardize the interests of the Government and/or the taxpayer the
Court at any stage of the proceeding may suspend the said collection and require the taxpayer either
to deposit the amount claimed or to file a surety bond for not more than double the amount with the
Court. (Emphasis supplied.)

There is really a discrepancy between Sections 7 and 11 above reproduced. Section 7 provides that the
Court of Tax Appeals has exclusive appellate jurisdiction to review by appeal decisions of the Collector
of Internal Revenue, decisions of the Commissioner of Customs and decisions of provincial or city
Board of Assessment Appeals on cases mentioned in said section. On the other hand, section 11 of the
same Republic Act in listing and enumerating the persons and entities who may appeal as well as the
effect of said appeal, mentions those affected by a decision or ruling of the Collector of Internal
Revenue, the Collector of Customs or any provincial or City Board of Assessment Appeals, and fails to
mention the Commissioner of Customs. Taken literally, a person affected by a decision of the
Collector of Customs may appeal to the Court of Tax Appeals; and since no mention is made about
decisions of the Commissioner of Customs, a person affected by said decision may not appeal to the
Court of Tax Appeals. However, section 7 of the Act above reproduced specially provides that the
Court of Tax Appeals has appellate jurisdiction to review decisions of the Commissioner of Customs.
That legal provision conferring appellate jurisdiction on the Court of Tax Appeals to review decisions
of the Commissioner of Customs would be empty, meaningless, and unenforceable because under
Section 11, no person affected by the decision of the Commissioner of customs may appeal to the Tax
Court. These two meaningless, and unenforceable because under Section 11, should be harmonized
and reconciled if possible, in order to give effect to the whole Act.

We are in entire accord with the Tax Court and the Solicitor General that a clerical error was
committed in section 11, mentioning therein the Collector of Customs. It should be, as it was meant to
be, the Commissioner of Customs. There are several reasons in support of this view. Under the
Customs Law, found in sections 1137 to 1419 of the Revised Administrative Code, the Commissioner of
Customs (Insular Collector of Customs) is the Chief of the Bureau of Customs and has jurisdiction
over the whole country as regards the enforcement of the Customs Law, whereas, there are about
sixteen Collectors of Customs for the sixteen collection districts and principal parts of entry into
which the Philippines has been divided. These Collectors of Customs are subordinates of the
Commissioner of Customs over whom he has supervision and control (section 1152, Revised
Administrative Code). Pursuant to said supervision and control, under section 1405 of the Revised
Administrative Code, when any new or unsettled question shall be determined by the Collector of
Customs, he shall, if matter is not otherwise carried upon for review in ordinary course, notify the
Commissioner of his decision, submitting an adequate statement of acts involved. What is more
important is the provision of section 1380, which reproduce below:

SEC. 1380. Review by Commissioner. — The person aggrieved by the decision of the Collector of
Customs in any matter presented upon protest or by his action in any case of seizure may, within
fifteen days after notification in writing by the collector of his action or decision, give written notice to
the collector signifying his desore to have the matter reviewed by the Commissioner.

Thereupon, the Collector of Customs shall forthwith transmit all the papers in the cause to the
Commissioner, who shall approve, modify, or reverse the action of his subordinate and shall take such
steps and make such order or orders as may be necessary to give effect to his decision.

Under this section, any person affected or aggrieved by the decision of the Collector of Customs may
appeal the decision to the Commissioner of Customs. From all this, it is clear if we followed the literal
meaning and wording of section 11 of Republic Act No. 1125, in the sense that persons affected by a
decision of the Collector of Customs may appeal directly tot he Court of Tax Appeals, then the
supervision and control of the Commissioner of Customs over his Collector of Customs, and his right
to review their decisions upon appeal to him by the persons affected by said decision would, not only
be gravely affected, but even destroyed. We cannot believe that was the intention of the Legislature in
passing Republic Act No. 1125. It is more reasonable and logical to hold that in Section 11 of the Act,
the Legislature meant and intended to say, the Commissioner of Customs, instead of Collector of
Customs in the first paragraph and the first part of the second paragraph of said section. In thus
holding, the Court are not exactly indulging in judicial legislation. They are merely endeavoring to
rectify and correct a clearly clerical error in the wording of a statute, in order to give due course and
carry out the evident intention of the Legislature. This the Courts should and can validly do. Under
the rules of statutory construction, it is not the letter but rather the spirit of the law and intention of
the Legislature that is important and which matters. When the interpretation of a statute according to
the exact and literal import of its words would lead to absurd or mischievous results, or would
contravene the clear purposes of the Legislature, it should be construed according to its spirit and
reason, disregarding as far as necessary, the latter of the law. Statutes may be extended to cover cases
not within the literal meaning of the terms, for that which is clearly within the intention of the
Legislature in enacting the law is as much within the statute as if it were within the latter. Here the
error (clerical and misprint) is plain and obvious. It is within the province of the courts to correct said
error. This is not to correct the act of the Legislature, but rather to carry out and give due course to the
true intention of said Legislature. (Black on Interpretation of Laws, 2nd edition, pp. 66-67; 157-158.).

Furthermore, section 11 of Republic Act 1125 may well be regarded as a mere complement or
implementation of section 7. Since section 7 provides that the Tax Court has jurisdiction to review by
appeal, decisions of the Collector of Internal Revenue. decisions of the Commissioner of Customs, and
decisions of provincial or city Boards of Assessment Appeals, so section 11 naturally provides that
persons adversely affected by said decisions may appeal to the Tax Court. However, in enumerating
the governmental bodies or agencies rendering said decisions that may be appealed, it erroneously
listed the Collector instead of the Commissioner, of Customs. The error is plain.

As a matter of fact, the Court of Tax Appeals in its resolution of dismissal of May 23, 1955 cites in
support thereof a resolution promulgated by it on January 22, 1955 in C.T.A. Case No. 17, entitled
"Acting Collector of Customs vs. Acting Commissioner of Customs", wherein it said:
The phrase "Collector of Customs" appearing in the above-mentioned provision (section 11) of
Republic Act No. 1125 is clearly an oversight on the part of Congress. It should read "Commissioner of
Customs" to make the provision conform with section 7 of the said Republic Act section 1380 of the
Revised Administrative Code.

Petitioner contends that the literal meaning of Section 11 of Republic Act No. 1125 should be adopted
in the sense that the Court of Tax Appeals has concurrent jurisdiction with the Commissioner of
Customs over Appeals from decisions of Collectors of Customs, so that a person adversely affected by
a decision of a Collector of Customs is given the choice of appealing the said decision either to the
Commissioner of Customs or to the Courts of Tax Appeals. We find contention unteable. In the first
place, the two remedies suggested are entirely different, one from the other; an appeal to the
Commissioner of Customs is purely administrative, whereas, appeal to the Court of Tax Appeal is
manifestly judicial. And it is a sound rule that before one resorts to the Courts, the administrative
remedy provided by law should first be exhausted. In the second place, the two remedies suggested by
the petitioner would result in confusion because a person adversely affected by a decision of a
Collector of Customs could not be sure where to seek the remedy, whether with the Commissioner of
Customs or with the Court of Tax Appeals, and it might even be difficult for him to decide because, if
he took the appeal directly to the Tax Court, that would ordinarily cut off his remedy before the
Commissioner of Customs for the reason that, should the Court of Tax Appeals decide against him, he
may not appeal said decision to the Commissioner of Customs because the Commissioner as an
administrative officer may not review the decision of the Court. On the other hand, if the person
affected by a decision of a Collector of Customs took his appeal to the Commissioner of Customs, and
there receives an adverse decision, he may yet appeal therefrom to the Court of Tax Appeals. In the
third place, even if the person affected by an adverse ruling of the Collector of Customs took his
appeal to the Court of Tax Appeals, as advocated by counsel for the petitioner, under the literal
meaning of section 11, the Tax Court may refuse to entertain said appeal, as was done in the present
case, on the ground that under section 7 of Republic Act No. 1125, it had no jurisdiction to review a
decision of the Collector of Customs, section 7 clearly limiting its appellate jurisdiction to review
decisions of the Commissioner of Customs.

In view of the foregoing, we hold that under the law, particularly, the Customs Law and Republic Act
No. 1125, the Court of Tax Appeals has no jurisdiction to review by appeal, decisions of the Collector
of Customs. The appealed order of dismissal is hereby affirmed, with costs.

G.R. No. L-17931 February 28, 1963

CASCO PHILIPPINE CHEMICAL CO., INC., petitioner,

vs.
HON. PEDRO GIMENEZ, in his capacity as Auditor General of the Philippines,
and HON. ISMAEL MATHAY, in his capacity as Auditor of the Central Bank,
respondents.

CONCEPCION, J.:

This is a petition for review of a decision of the Auditor General denying a claim for refund of
petitioner Casco Philippine Chemical Co., Inc.

The main facts are not disputed. Pursuant to the provisions of Republic Act No. 2609, otherwise
known as the Foreign Exchange Margin Fee Law, the Central Bank of the Philippines issued on July 1,
1959, its Circular No. 95. fixing a uniform margin fee of 25% on foreign exchange transactions. To
supplement the circular, the Bank later promulgated a memorandum establishing the procedure for
applications for exemption from the payment of said fee, as provided in said Republic Act No. 2609.
Several times in November and December 1959, petitioner Casco Philippine Chemical Co., Inc. —
which is engaged in the manufacture of synthetic resin glues, used in bonding lumber and veneer by
plywood and hardwood producers — bought foreign exchange for the importation of urea and
formaldehyde — which are the main raw materials in the production of said glues — and paid therefor
the aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner made another
purchase of foreign exchange and paid the sum of P6,345.72 as margin fee therefor.

Prior thereto, petitioner had sought the refund of the first sum of P33,765.42, relying upon Resolution
No. 1529 of the Monetary Board of said Bank, dated November 3, 1959, declaring that the separate
importation of urea and formaldehyde is exempt from said fee. Soon after the last importation of
these products, petitioner made a similar request for refund of the sum of P6,345.72 paid as margin
fee therefor. Although the Central Bank issued the corresponding margin fee vouchers for the refund
of said amounts, the Auditor of the Bank refused to pass in audit and approve said vouchers, upon the
ground that the exemption granted by the Monetary Board for petitioner's separate importations of
urea and formaldehyde is not in accord with the provisions of section 2, paragraph XVIII of Republic
Act No. 2609. On appeal taken by petitioner, the Auditor General subsequently affirmed said action of
the Auditor of the Bank. Hence, this petition for review.

The only question for determination in this case is whether or not "urea" and "formaldehyde" are
exempt by law from the payment of the aforesaid margin fee. The pertinent portion of Section 2 of
Republic Act No. 2609 reads:

The margin established by the Monetary Board pursuant to the provision of section one hereof shall
not be imposed upon the sale of foreign exchange for the importation of the following:.

xxx xxx xxx

XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported by and for
the exclusive use of end-users.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove
their case not covered by this stipulation of facts. 1äwphï1.ñët

Petitioner maintains that the term "urea formaldehyde" appearing in this provision should be
construed as "urea and formaldehyde" (emphasis supplied) and that respondents herein, the Auditor
General and the Auditor of the Central Bank, have erred in holding otherwise. In this connection, it
should be noted that, whereas "urea" and "formaldehyde" are the principal raw materials in the
manufacture of synthetic resin glues, the National Institute of Science and Technology ha s expressed,
through its Commissioner, the view that:

Urea formaldehyde is not a chemical solution. It is the synthetic resin formed as a condensation
product from definite proportions of urea and formaldehyde under certain conditions relating to
temperature, acidity, and time of reaction. This produce when applied in water solution and extended
with inexpensive fillers constitutes a fairly low cost adhesive for use in the manufacture of plywood.

Hence, "urea formaldehyde" is clearly a finished product, w hich is patently distinct and different from
urea" and "formaldehyde", as separate articles used in the manufacture of the synthetic resin known
as "urea formaldehyde". Petitioner contends, however, that the bill approved in Congress contained
the copulative conjunction "and" between the terms "urea" and "formaldehyde", and that the
members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements
in the manufacture of the synthetic resin glue called "urea" formaldehyde", not the latter as a finished
product, citing in support of this view the statements made on the floor of the Senate, during the
consideration of the bill before said House, by members thereof. But, said individual statements do
not necessarily reflect the view of the Senate. Much less do they indicate the intent of the House of
Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615; Mayon Motors
Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club,
Inc. vs. Games & Amusement Board, L-12727 [February 29, 1960]). Furthermore, it is well settled that
the enrolled bill — which uses the term "urea formaldehyde" instead of "urea and formaldehyde" — is
conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by
the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs.
Comm. on Elections, L-18684, September 14, 1961). If there has been any mistake in the printing
ofthe bill before it was certified by the officers of Congress and approved by the Executive — on which
we cannot speculate, without jeopardizing the principle of separation of powers and undermining one
of the cornerstones of our democratic system — the remedy is by amendment or curative legislation,
not by judicial decree.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the petitioner. It is
so ordered.

G.R. No. L-23475 April 30, 1974

HERMINIO A. ASTORGA, in his capacity as Vice-Mayor of Manila, petitioner,

vs.
ANTONIO J. VILLEGAS, in his capacity as Mayor of Manila, THE HON., THE
EXECUTIVE SECRETARY, ABELARDO SUBIDO, in his capacity as Commissioner of
Civil Service, EDUARDO QUINTOS, in his capacity as Chief of Police of Manila,
MANUEL CUDIAMAT, in his capacity as City Treasurer of Manila, CITY OF MANILA,
JOSE SEMBRANO, FRANCISCO GATMAITAN, MARTIN ISIDRO, CESAR LUCERO,
PADERES TINOCO, LEONARDO FUGOSO, FRANCIS YUSECO, APOLONIO GENER,
AMBROCIO LORENZO, JR., ALFONSO MENDOZA, JR., SERGIO LOYOLA, GERINO
TOLENTINO, MARIANO MAGSALIN, EDUARDO QUINTOS, JR., AVELINO
VILLACORTA, PABLO OCAMPO, FELICISIMO CABIGAO, JOSE BRILLANTES, JOSE
VILLANUEVA and MARINA FRANCISCO, in their capacities as members of the
Municipal Board, respondents.

MAKALINTAL, C.J.:p

The present controversy revolves around the passage of House Bill No. 9266, which became Republic
Act 4065, "An Act Defining the Powers, Rights and Duties of the Vice-Mayor of the City of Manila,
Further Amending for the Purpose Sections Ten and Eleven of Republic Act Numbered Four Hundred
Nine, as Amended, Otherwise Known as the Revised Charter of the City of Manila."

The facts as set forth in the pleadings appear undisputed:

On March 30, 1964 House Bill No. 9266, a bill of local application, was filed in the House of
Representatives. It was there passed on third reading without amendments on April 21, 1964.
Forthwith the bill was sent to the Senate for its concurrence. It was referred to the Senate Committee
on Provinces and Municipal Governments and Cities headed by Senator Gerardo M. Roxas. The
committee favorably recommended approval with a minor amendment, suggested by Senator Roxas,
that instead of the City Engineer it be the President Protempore of the Municipal Board who should
succeed the Vice-Mayor in case of the latter's incapacity to act as Mayor.

When the bill was discussed on the floor of the Senate on second reading on May 20, 1964, substantial
amendments to Section 11 were introduced by Senator Arturo Tolentino. Those amendments were
approved in toto by the Senate. The amendment recommended by Senator Roxas does not appear in
the journal of the Senate proceedings as having been acted upon.

On May 21, 1964 the Secretary of the Senate sent a letter to the House of Representatives that House
Bill No. 9266 had been passed by the Senate on May 20, 1964 "with amendments." Attached to the
letter was a certification of the amendment, which was the one recommended by Senator Roxas and
not the Tolentino amendments which were the ones actually approved by the Senate. The House of
Representatives thereafter signified its approval of House Bill No. 9266 as sent back to it, and copies
thereof were caused to be printed. The printed copies were then certified and attested by the Secretary
of the House of Representatives, the Speaker of the House of Representatives, the Secretary of the
Senate and the Senate President. On June 16, 1964 the Secretary of the House transmitted four
printed copies of the bill to the President of the Philippines, who affixed his signatures thereto by way
of approval on June 18, 1964. The bill thereupon became Republic Act No. 4065.

The furor over the Act which ensued as a result of the public denunciation mounted by respondent
City Mayor drew immediate reaction from Senator Tolentino, who on July 5, 1964 issued a press
statement that the enrolled copy of House Bill No. 9266 signed into law by the President of the
Philippines was a wrong version of the bill actually passed by the Senate because it did not embody
the amendments introduced by him and approved on the Senate floor. As a consequence the Senate
President, through the Secretary of the Senate, addressed a letter dated July 11, 1964 to the President
of the Philippines, explaining that the enrolled copy of House Bill No. 9266 signed by the secretaries
of both Houses as well as by the presiding officers thereof was not the bill duly approved by Congress
and that he considered his signature on the enrolled bill as invalid and of no effect. A subsequent
letter dated July 21, 1964 made the further clarification that the invalidation by the Senate President
of his signature meant that the bill on which his signature appeared had never been approved by the
Senate and therefore the fact that he and the Senate Secretary had signed it did not make the bill a
valid enactment.

On July 31, 1964 the President of the Philippines sent a message to the presiding officers of both
Houses of Congress informing them that in view of the circumstances he was officially withdrawing
his signature on House Bill No. 9266 (which had been returned to the Senate the previous July 3),
adding that "it would be untenable and against public policy to convert into law what was not actually
approved by the two Houses of Congress."

Upon the foregoing facts the Mayor of Manila, Antonio Villegas, issued circulars to the department
heads and chiefs of offices of the city government as well as to the owners, operators and/or managers
of business establishments in Manila to disregard the provisions of Republic Act 4065. He likewise
issued an order to the Chief of Police to recall five members of the city police force who had been
assigned to the Vice-Mayor presumably under authority of Republic Act 4065.

Reacting to these steps taken by Mayor Villegas, the then Vice-Mayor, Herminio A. Astorga, filed a
petition with this Court on September 7, 1964 for "Mandamus, Injunction and/or Prohibition with
Preliminary Mandatory and Prohibitory Injunction" to compel respondents Mayor of Manila, the
Executive Secretary, the Commissioner of Civil Service, the Manila Chief of Police, the Manila City
Treasurer and the members of the municipal board to comply with the provisions of Republic Act
4065.

Respondents' position is that the so-called Republic Act 4065 never became law since it was not the
bill actually passed by the Senate, and that the entries in the journal of that body and not the enrolled
bill itself should be decisive in the resolution of the issue.

On April 28, 1965, upon motion of respondent Mayor, who was then going abroad on an official trip,
this Court issued a restraining order, without bond, "enjoining the petitioner Vice-Mayor Herminio
Astorga from exercising any of the powers of an Acting Mayor purportedly conferred upon the Vice-
Mayor of Manila under the so-called Republic Act 4065 and not otherwise conferred upon said Vice-
Mayor under any other law until further orders from this Court."

The original petitioner, Herminio A. Astorga, has since been succeeded by others as Vice-Mayor of
Manila. Attorneys Fortunato de Leon and Antonio Raquiza, with previous leave of this Court,
appeared as amici curiae, and have filed extensive and highly enlightening memoranda on the issues
raised by the parties.

Lengthy arguments, supported by copious citations of authorities, principally decisions of United

States Federal and State Courts, have been submitted on the question of whether the "enrolled bill"
doctrine or the "journal entry" rule should be adhered to in this jurisdiction. A similar question came
up before this Court and elicited differing opinions in the case of Mabanag, et al. vs. Lopez Vito, et al.
(March 5, 1947), 78 Phil. Reports 1. While the majority of the Court in that case applied the "enrolled
bill" doctrine, it cannot be truly said that the question has been laid to rest and that the decision
therein constitutes a binding precedent.

The issue in that case was whether or not a resolution of both Houses of Congress proposing an
amendment to the (1935) Constitution to be appended as an ordinance thereto (the so-called parity
rights provision) had been passed by "a vote of three-fourths of all the members of the Senate and of
the House of Representatives" pursuant to Article XV of the Constitution.

The main opinion, delivered by Justice Pedro Tuason and concurred in by Justices Manuel V. Moran,
Guillermo F. Pablo and Jose M. Hontiveros, held that the case involved a political question which was
not within the province of the judiciary in view of the principle of separation of powers in our
government. The "enrolled bill" theory was relied upon merely to bolster the ruling on the
jurisdictional question, the reasoning being that "if a political question conclusively binds the judges
out of respect to the political departments, a duly certified law or resolution also binds the judges
under the "enrolled bill rule" born of that respect."

Justice Cesar Bengzon wrote a separate opinion, concurred in by Justice Sabino Padilla, holding th at
the Court had jurisdiction to resolve the question presented, and affirming categorically that "the
enrolled copy of the resolution and the legislative journals are conclusive upon us," specifically in view
of Section 313 of Act 190, as amended by Act No. 2210. This provision in the Rules of Evidence in the
old Code of Civil Procedure appears indeed to be the only statutory basis on which the "enrolled bill"
theory rests. It reads:

The proceedings of the Philippine Commission, or of any legislative body that may be provided for in
the Philippine Islands, or of Congress (may be proved) by the journals of those bodies or of either
house thereof, or by published statutes or resolutions, or by copies certified by the clerk or secretary,
printed by their order; provided, that in the case of acts of the Philippine Commission or the
Philippine Legislature, when there is in existence a copy signed by the presiding officers and
secretaries of said bodies, it shall be conclusive proof of the provisions of such acts and of the due
enactment thereof.

Congress devised its own system of authenticating bills duly approved by both Houses, namely, by the
signatures of their respective presiding officers and secretaries on the printed copy of the approved
bill.2 It has been held that this procedure is merely a mode of authentication,3 to signify to the Chief
Executive that the bill being presented to him has been duly approved by Congress and is ready for his
approval or rejection.4 The function of an attestation is therefore not of approval, because a bill is
considered approved after it has passed both Houses. Even where such attestation is provided for in
the Constitution authorities are divided as to whether or not the signatures are mandatory such that
their absence would render the statute invalid.5 The affirmative view, it is pointed out, would be in
effect giving the presiding officers the power of veto, which in itself is a strong argument to the
contrary6 There is less reason to make the attestation a requisite for the validity of a bill where the
Constitution does not even provide that the presiding officers should sign the bill before it is
submitted to the President.

In one case in the United States, where the (State)Constitution required the presiding officers to sign
a bill and this provision was deemed mandatory, the duly authenticated enrolled bill was considered
as conclusive proof of its due enactment.7 Another case however, under the same circumstances, held
that the enrolled bill was not conclusive evidence.8 But in the case of Field vs. Clark,9 the U.S.
Supreme Court held that the signatures of the presiding officers on a bill, although not required by the
Constitution, is conclusive evidence of its passage. The authorities in the United States are thus not
unanimous on this point.

The rationale of the enrolled bill theory is set forth in the said case of Field vs. Clark as follows:

The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in
open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has
passed Congress. It is a declaration by the two houses, through their presiding officers, to the
President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of
the government, and that it is delivered to him in obedience to the constitutional requirement that all
bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his
approval, and is deposited in the public archives, its authentication as a bill that has passed Congress
should be deemed complete and unimpeachable. As the President has no authority to approve a bill
not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official
attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the
President of the United States, carries, on its face, a solemn assurance by the legislative and executive
departments of the government, charged, respectively, with the duty of enacting and executing the
laws, that it was passed by Congress. The respect due to coequal and independent departments
requires the judicial department to act upon that assurance, and to accept, as having passed Congress,
all bills authenticated in the manner stated; leaving the courts to determine, when the question
properly arises, whether the Act, so authenticated, is in conformity with the Constitution.

It may be noted that the enrolled bill theory is based mainly on "the respect due to coequal and
independent departments," which requires the judicial department "to accept, as having passed
Congress, all bills authenticated in the manner stated." Thus it has also been stated in other cases that
if the attestation is absent and the same is not required for the validity of a statute, the courts may
resort to the journals and other records of Congress for proof of its due enactment. This was the
logical conclusion reached in a number of decisions, 10 although they are silent as to whether the
journals may still be resorted to if the attestation of the presiding officers is present.

The (1935) Constitution is silent as to what shall constitute proof of due enactment of a bill. It does
not require the presiding officers to certify to the same. But the said Constitution does contain the
following provisions:
Sec. 10 (4). "Each House shall keep a Journal of its proceedings, and from time to time publish the
same, excepting such parts as may in its judgment require secrecy; and the yeas and nays on any
question shall, at the request of one-fifth of the Members present, be entered in the Journal."

Sec. 21 (2). "No bill shall be passed by either House unless it shall have been printed and copies
thereof in its final form furnished its Members at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its immediate enactment. Upon the last
reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be
taken immediately thereafter, and the yeas and nays entered on the Journal."

Petitioner's argument that the attestation of the presiding officers of Congress is conclusive proof of a
bill's due enactment, required, it is said, by the respect due to a co-equal department of the
government, 11 is neutralized in this case by the fact that the Senate President declared his signature
on the bill to be invalid and issued a subsequent clarification that the invalidation of his signature
meant that the bill he had signed had never been approved by the Senate. Obviously this declaration
should be accorded even greater respect than the attestation it invalidated, which it did for a reason
that is undisputed in fact and indisputable in logic.

As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the
presiding officers. It is merely a mode of authentication. The lawmaking process in Congress ends
when the bill is approved by both Houses, and the certification does not add to the validity of the bill
or cure any defect already present upon its passage. In other words it is the approv al by Congress and
not the signatures of the presiding officers that is essential. Thus the (1935) Constitution says that "[e]
very bill passed by the Congress shall, before it becomes law, be presented to the President. 12 In
Brown vs. Morris, supra, the Supreme Court of Missouri, interpreting a similar provision in the State
Constitution, said that the same "makes it clear that the indispensable step is the final passage and it
follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, of the
proof that it has "passed both houses" will satisfy the constitutional requirement."

Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer
thereof by the Senate President, granting it to have been validly made, would only mean that there
was no attestation at all, but would not affect the validity of the statute. Hence, it is pointed out,
Republic Act No. 4065 would remain valid and binding. This argument begs the issue. It would lim it
the court's inquiry to the presence or absence of the attestation and to the effect of its absence upon
the validity of the statute. The inquiry, however, goes farther. Absent such attestation as a result of the
disclaimer, and consequently there being no enrolled bill to speak of, what evidence is there to
determine whether or not the bill had been duly enacted? In such a case the entries in the journal
should be consulted.

The journal of the proceedings of each House of Congress is no ordinary record. The Constitution
requires it. While it is true that the journal is not authenticated and is subject to the risks of
misprinting and other errors, the point is irrelevant in this case. This Court is merely asked to inquire
whether the text of House Bill No. 9266 signed by the Chief Executive was the same text passed by
both Houses of Congress. Under the specific facts and circumstances of this case, this Court can do
this and resort to the Senate journal for the purpose. The journal discloses that substantial and
lengthy amendments were introduced on the floor and approved by the Senate but were not
incorporated in the printed text sent to the President and signed by him. This Court is not asked to
incorporate such amendments into the alleged law, which admittedly is a risky undertaking, 13 but to
declare that the bill was not duly enacted and therefore did not become law. This We do, as indeed
both the President of the Senate and the Chief Executive did, when they withdrew their signatures
therein. In the face of the manifest error committed and subsequently rectified by the President of the
Senate and by the Chief Executive, for this Court to perpetuate that error by disregarding such
rectification and holding that the erroneous bill has become law would be to sacrifice truth to fiction
and bring about mischievous consequences not intended by the law -making body.

In view of the foregoing considerations, the petition is denied and the so-called Republic Act No. 4065
entitled "AN ACT DEFINING THE POWERS, RIGHTS AND DUTIES OF THE VICE-MAYOR OF THE
CITY OF MANILA, FURTHER AMENDING FOR THE PURPOSE SECTIONS TEN AND ELEVEN OF
REPUBLIC ACT NUMBERED FOUR HUNDRED NINE, AS AMENDED, OTHERWISE KNOWN AS
THE REVISED CHARTER OF THE CITY OF MANILA" is declared not to have been duly enacted and
therefore did not become law. The temporary restraining order dated April 28, 1965 is hereby made
permanent. No pronouncement as to costs.