I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA

A. The prime Duty of the Senate 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 ako 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. (Emphases supplied)

2. 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.

3. The power and duty to conduct
   foreign relations
   

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

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

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

4. 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 power^[22] 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

1. 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]

2. 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.

3. 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 agreed^[70] to hold joint exercises at a substantially reduced level.^[71]

The military arrangements between them were revived in 1999 when they concluded the first Visiting Forces Agreement (VFA).^[72]

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

Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part in joint military exercises with their Filipino counterparts.^[78] Called Balikatan, these exercises involved trainings aimed at simulating joint military maneuvers pursuant to the MDT.^[79]

In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to "further the interoperability, readiness, and effectiveness of their respective military forces"^[80] in accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA.^[81] The new agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal provision of logistics support, supplies, and services between the military forces of the two countries. 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. Already extended twice, the agreement will last until 2017.

4. 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 arguments^[90] 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:

1. Whether the essential requisites for judicial review are present
   
   
2. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities
   
   
3. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and treaties

IV. Discussion

1. 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.

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. 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:

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.

x x x x

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. Albam^[101] and Francisco v. House of Representatives^[102] 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. Francisco^[104] 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 maintains^[107] 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. 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(l) 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 members of the Legislature, they have the requisite personality to bring a suit, especially when a constitutional issue is raised.

The OSG counters^[130] that petitioners do not have any legal standing to file the suits concerning the lack of Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and international agreements is an "institutional prerogative" granted by the Constitution to the Senate. Accordingly, the OSG argues that in case of an allegation of impairment of that power, the injured party would be the Senate as an institution or any of its incumbent members, as it is the Senate's constitutional function that is allegedly being violated.

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

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

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

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

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

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

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

Petitioners^[138] argue that the Court may set aside procedural technicalities, as the present petition tackles issues that are of transcendental importance. They point out that the matter before us is about the proper exercise of the Executive Department's power to enter into international agreements in relation to that of the Senate to concur in those agreements. They also assert that EDCA would cause grave injustice, as well as irreparable violation of the Constitution and of the Filipino people's rights.

The OSG, on the other hand, insists^[139] 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.

2. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities
   
   
3. 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 17, 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.

x x x x

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

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

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the Constitution to do nothing when the call of the moment requires increasing the military's defensive capabilities, which could include forging alliances with states that hold a common interest with the Philippines or bringing an international suit against an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting Opinion as the beginning of a "patent misconception."^[165] His dissent argues that this approach taken in analyzing the President's role as executor of the laws is preceded by the duty to preserve and defend the Constitution, which was allegedly overlooked.^[166]

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the analysis, if read holistically and in context. The concept that the President cannot function with crippled hands and therefore can disregard the need for Senate concurrence in treaties^[167] was never expressed or implied. Rather, the appropriate reading of the preceding analysis shows that the point being elucidated is the reality that the President's duty to execute the laws and protect the Philippines is inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued with both concerns to the full extent of his powers, subject only to the limits supplied by law. In other words, apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner of execution by the President must be given utmost deference. This approach is not different from that taken by the Court in situations with fairly similar contexts.

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

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

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

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

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

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

It is quite apparent that if, in the maintenance of our international relations, embarrassment — perhaps serious embarrassment — is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials....

This ruling has been incorporated in our jurisprudence through Bayan 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 argue^[170] 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 105^[171] that EDCA must be submitted to the Senate in the form of a treaty for concurrence by at least two-thirds of all its members.

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

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

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

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

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

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

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

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

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

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that further construction must be done to elicit its meaning.^[179] In Ang Bagong Bayani-OFW v. Commission on Elections,^[180] we reiterated this guiding principle:

it [is] safer to construe the Constitution from what appears upon its face. The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers' understanding thereof. (Emphases supplied)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the sole organ of our foreign relations^[200] 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 power^[203] 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 carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature."^[204] In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover a wide array of subjects that have various scopes and purposes.^[205] They are no longer limited to the traditional subjects that are usually covered by executive agreements as identified in Eastern Sea Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international 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.

x x x x

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

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

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

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement? According to common usage, there are two types of executive agreement: one is purely proceeding from an executive act which affects external relations independent of the legislative and the other is an executive act in pursuance of legislative authorization. The first kind might take the form of just conventions or exchanges of notes or protocol while the other, which would be pursuant to the legislative authorization, may be in the nature of commercial agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to determine the details for the implementation of the treaty. We are speaking of executive agreements, not international agreements.

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

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

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

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

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

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

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

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

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

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

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

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

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

x x x

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

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

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

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

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

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

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

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

x x x

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

FR. BERNAS: Yes. (Emphases Supplied)

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

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

The special nature of an executive agreement is not just a domestic variation in international agreements. International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty - which connotes a formal, solemn instrument - to engagements concluded in modern, 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 Senate^[215] 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:

1. The policy of freedom from nuclear weapons within Philippine territory^[221]
   
   
2. 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]
   
   
3. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the Members of Congress^[223]
   
   
4. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously concurred in by the Monetary Board^[224]
   
   
5. 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]
   
   
6. 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.
   
   
   1. 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]
      
      
   2. 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]
      
      
   3. 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 x x 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.

x x x x

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 BFO-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, as well as with existing laws and treaties.

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

7.  EDCA is consistent with
   the content, purpose, and
   framework of the MDT
   and the VFA

The starting point of our analysis is the rule that "an executive agreement x x 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 I^[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(10) 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 activities 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 argues^[250] 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 contest^[251] 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.

1. 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 clarifies that the agreement does not deal with the entry into the country of U.S. personnel and contractors per se. While Articles 1(1 )(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; x x x x.

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.

2. 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 11(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 regulations^[262] 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. contractors^[265] 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 Act^[267] 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 "disposed] x x x outside of the Philippines."

3. 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;

x x x

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: x x 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, xxx.

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 practice^[270] of the parties show that the MDT independently allows joint military exercises in the country, Lim v. Executive Secretary^[271] and Nicolas v. Romulo^[272] 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.

x x x x

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.

x x x x

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 in further 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 appropriate measures to protect U.S. forces and contractors^[282]
   
   
5. Use of water, electricity, and other public utilities^[283]
   
   
6. Operation of their own telecommunication systems, including the utilization of such means and services as are required to ensure the full ability to operate telecommunication systems, as well as the use of the necessary radio spectrum allocated for this 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 Reference^[285] mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform the following: (a) participate in training exercises; (b) retain command over their forces; (c) establish temporary structures in the country; (d) share in the use of their respective resources, equipment and other assets; and (e) exercise their right to self-defense. We quote the relevant portion of the Terms and Conditions as follows:^[286]

1. 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.
   
   x x x x.
   
   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.
   
   
2. 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
   
   x x x x
   
   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 assert^[287] 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 JEDCA 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 U.S.-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 U.S.-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 countries^[293] 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.

4. Authorized activities performed by U.S. 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 raise^[296] 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 materiel^[298]
   
   
3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, regulations, and policies^[299]

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 firearms^[301] 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 7^th 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 laws^[311] 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 11(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) of EDCA 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.

1. 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 out^[319] 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 petitioners^[321] 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 must be considered before the constitutional restriction is violated. Thus, petitioners' points on operational control will be given more attention in the discussion below. The arguments on policy are, however, outside the scope of judicial review and will not be discussed

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

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

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

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

1947 MBA/ 1946 Treaty of General Relations

EDCA

1947 MBA, Art. 1(1):       The Government of the Republic of the Philippines (hereinafter referred to as the Philippines) grants to the Government of the United States of America (hereinafter referred to as the United States) the right to retain the use of the bases in the Philippines listed in Annex A attached hereto. 1947 MBA, Art. XVII(2): All buildings and structures which are erected by the United States in the bases shall be the property of the United States and may be removed by it before the expiration of this Agreement or the earlier relinquishment of the base on which the structures are situated. There shall be no obligation on the part of the Philippines or of the United States to rebuild or repair any destruction or damage inflicted from any cause whatsoever on any of the said buildings or structures owned or used by the United States in the bases, x x x x. 1946 Treaty of Gen. Relations. Art. I: The United States of America agrees to withdraw and surrender, and does hereby withdraw and surrender, all rights of possession, supervision, jurisdiction, control or sovereignty existing and exercised by the United States of America in and over the territory and the people of the Philippine Islands, except the use of such bases, necessary appurtenances to such bases, and the rights incident thereto, as the United States of America, by agreement with the Republic of the Philippines may deem necessary to retain for the mutual protection of the Republic of the Philippines and of the United States of America, x x x.

EDCA, preamble: Affirming that the Parties share an understanding for the United States not to establish a permanent military presence or base in the territory of the Philippines; x x x x Recognizing that all United States access to and use of facilities and areas will be at the invitation of the Philippines and with full respect for the Philippine Constitution and Philippine laws; x x x x EDCA, Art. 11(4): "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements. EDCA, Art. V: 1. The Philippines shall retain ownership of and title to Agreed Locations. x x x x 4. All buildings, non-relocatable structures, and assemblies affixed to the land in the Agreed Locations, including ones altered or improved by United States forces, remain the property of the Philippines. Permanent buildings constructed by United States forces become the property of the Philippines, once constructed, but shall be used by United States forces until no longer required by United States forces.

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

1947 MBA/ 1946 Treaty of General Relations

EDCA

1947 MBA, Art. I(3): The Philippines agree to enter into negotiations with the United States at the latter's request, to permit the United States to expand such bases, to exchange such bases for other bases, to acquire additional bases, or relinquish rights to bases, as any of such exigencies may be required by military necessity. 1946 Treaty of Gen. Relations, Art. I: The United States of America agrees to withdraw and surrender, and does hereby withdraw and surrender, all rights of possession, supervision, jurisdiction, control or sovereignty existing and exercised by the United States of America in and over the territory and the people of the 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, xxx.

EDCA, preamble: Recognizing that all United States access to and use of facilities and areas will be at the invitation of the Philippines and with full respect for the Philippine Constitution and Philippine laws; x x x x EDCA, Art. II(4): "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements.

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. Art. 1(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. 1947 MBA, 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.

EDCA, Art. 111(4): The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations. United States forces shall consult on issues regarding such construction, alterations, and improvements based on the Parties' shared intent that the technical requirements and construction standards of any such projects undertaken by or on behalf of United States forces should be consistent with the requirements and standards of both Parties.

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, Art. VI: The United States shall, subject to previous agreement with the Philippines, have the right to use land and coastal sea areas of appropriate size and location for periodic maneuvers, for additional staging areas, bombing and gunnery ranges, and for such intermediate airfields as may be required for safe and efficient air operations. Operations in such areas shall be carried on with due regard and safeguards for the public safety. 1947 MBA, Art. 1(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.

EDCA, Art. 111(1): With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the Parties may agree.

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. III(2)(c) Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x to control (including the right to prohibit) in so far as may be required for the efficient operation and safety of the 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

No equivalent provision.

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

1947 MBA	EDCA
1947 MBA, Art. III(2)(b): Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases.	EDCA, Art. 111(2): When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields).

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

1947 MBA

EDCA

1947 MBA, Art. VII: It is mutually agreed that the United States may employ and use for United States military forces any and all public utilities, other services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers and streams in the Philippines under conditions no less favorable than those that may be applicable from time to time to the military forces of the Philippines.

EDCA, Art. III(2): When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields).

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or system unlike in the old treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the authority to undertake construction, alteration, or improvements on the Philippine-owned Agreed Locations.

1947 MBA

EDCA

1947 MBA, Art. III(2)(e): Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.

EDCA. Art. III(4). The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the MDB and SEB, ooperational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations. United States forces shall consult on issues regarding such construction, alterations, and improvements based on the Parties' shared intent that the technical requirements and construction standards of 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. XXII(1): 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 thereby 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.

No equivalent provision.

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(1): It is mutually agreed that the United States shall have the right to bring into the Philippines members of the United States military forces and the United States nationals employed by or under a contract with the United States together with their families, and technical personnel of other nationalities (not being persons excluded by the laws of the Philippines) in connection with the construction, maintenance, or operation of the bases. The United States shall make suitable arrangements so that such persons may be readily identified and their status established when necessary by the Philippine authorities. Such persons, other than 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 non­immigrants.

EDCA, Art. II: 1. "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. x x x x 3. "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.

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. XIII(1)(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.

No equivalent provision.

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(1): 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.

No equivalent provision.

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.

3. 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 1947 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]

x x x x

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.

x x x x

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

x x x x

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]

x x x x

SPEECH OF COMMISSIONER SUAREZ^[337]

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 self- respect 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]

x x x x

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.

X X X X

xxx 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

xxx 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]

x x x x

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

x x x x

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]

x x x x

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]

x x x x

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.

x x x x

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.

x x x x

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]

x x x x

SPEECH OF COMMISSIONER TADEO^[354]

Para sa magbubukid, ano ba 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 dlbdib 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 QUESADA^[356]

x x x x

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.

x x x x

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 make this a part of future negotiations.^[357]

x x x x

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]

x x x x

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.

x x x x

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.

x x x x

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 PADILLA^[360]

x x x x

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]

x x x x

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]

x x x x

x x 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.

9. 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.

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 government.^[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 government.^[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 1986,1 spoke on the self-reliance policy of the armed forces. However, due to very limited resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the armed forces. We have to blame the whole Republic of the Philippines for failure to provide the necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country — insurgency — and with very limited funds and very limited number of men, it will be quite impossible for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S. government is furnishing us the military hardware, it is not control of our armed forces or of our government. It is in compliance with the Mutual Defense Treaty. It is under the military assistance program that it becomes the responsibility of the United States to furnish us the necessary hardware in connection with the military bases agreement. Please be informed that there are three (3) treaties connected with the military bases agreement; namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty and the Military Assistance Program.

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

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

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

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

The heart of the constitutional restriction on foreign military facilities and bases is therefore the assertion of independence from the U.S. and other foreign powers, as independence is exhibited by the degree of foreign control exerted over these areas. 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.

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

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

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

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

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

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

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

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

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

2. Operational control vis-a-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 "[tjhose 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.

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

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

Operational control is defined thus:^[399]

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

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

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

3. 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 was total control, to the point that the foreign military forces might dictate the terms of their acts within the Philippines.^[404] More important, limited control does not mean an abdication or derogation of Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the extension of diplomatic courtesies and rights to diplomatic agents,^[405] which is a waiver of control on a limited scale and subject to the terms of the treaty.

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

2. 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]

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

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

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

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

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

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

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

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

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

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

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

By virtue of this ambiguity, the laws of war dictate that the status ofa building or person is presumed to be protected, unless proven otherwise.^[427] Moreover, the principle of distinction requires combatants in an aimed conflict to distinguish between lawful targets^[428] 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 Agreement^[432]
   
2. 2009 U.S.-Colombia Defense Cooperation Agreement^[433]
   
3. 2009 U.S.-Poland Status of Forces Agreement^[434]
   
4. 2014 U.S.-Australia Force Posture Agreement^[435]
   
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(1) of the U.S.-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 offerees and materiel, with the purpose of conducting xxx 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 xxx 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 xxx 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 VII(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.

Velasco, Jr., Del Castillo, Villarama, Jr., Perez, Mendoza, and Reyes, JJ., concur.
Carpio, J., see separate concurring opinion.
Leonardo-De Castro, J., I dissent. see my dissenting opinion.
Brion, J., I dissent. see my dissenting opinion.
Peralta, J., I join J. Carpio's opinion.
Bersamin, J., I join the separate concurring opinion of J. Carpio.
Perlas-Bernabe, J., I join  the dissenting opinions
Leonen, J., I dissent. see separate opinion.
Jardeleza, J., no part.

---

^* No part.

^[1] Petition of Saguisag et al., rollo (G.R. No. 212426, Vol. I), pp. 3-66; Petition of Bayan et at., rollo (G.R. No. 212444, Vol. I), pp. 3-101.

^[2] Petition of Saguisag et al., p. 5, rollo (G.R. No. 212426, Vol. I), p. 7; Petition of Bayan et al, p. 5, rollo (G.R. No. 212444, Vol. I), p. 7.

^[3] Principally the following provisions under the Constitution: Art. VII, Sec. 21; Art. XVIII, Sec. 25; Art. I; Art. II, Sees. 2, 7, & 8; Art. VI, Sec. 28(4); and Art. VIII, Sec. 1. See Petition of Saguisag et al, pp. 23-59, rollo (G.R. No. 212426, Vol. I), pp. 25-61; Petition of Bayan et al., rollo, pp. 23-93, (G.R. No. 212444, Vol. I), pp. 25-95.

^[4] Memorandum of the OSG, pp. 8-38, rollo (G.R. No. 212426, Vol. I), pp. 438-468.

^[5] The Protocol, Ceremony, History, and Symbolism of the Presidential Inauguration, THE PRESIDENTIAL Museum and Library, available at (last visited 5 Nov. 2015).

^[6] CONSTITUTION, Art. VII, Sec. 1.

^[7] CONSTITUTION, Art. II, Sec. 4.

^[8] CONSTITUTION, Art. I.

^[9] CONSTITUTION, Art. II, Sec. 3.

^[10] Id.

^[11] CONSTITUTION, Art. II, Sec. 5.

^[12] See CONSTITUTION, Art. VII, Sec. 18 in relation to Art. II, Sees. 3, 4 & 7; Executive Order No. 292 (Administrative Code of 1987), Book IV (Executive Branch), Title VIII (National Defense), Sees. 1, 15, 26 & 33 [hereinafter Administrative Code of 1987].

^[13] Administrative Code of 1987, Book IV (Executive Branch), Title XII (Local Government), Sec. 3(5).

^[14] CONSTITUTION, Art. VII, Sec. 18.

^[15] See CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code of 1987, Book IV (Executive Branch), Title I (Foreign Affairs), Sees. 3(1) and 20; Akbayan Citizens Action Party v. Aquino, 580 Phil. 422 (2008); Pimentel v. Office of the Executive Secretary, 501 Phil. 303 (2005); People's Movement for Press Freedom v. Manglapus, G.R. No. 84642, 13 September 1988 (unreported) (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 [1936]); JOAQUIN BERNAS, FOREIGN RELATIONS IN CONSTITUTIONAL LAW, 101 (1995); IRENE R. CORTES, THE PHILIPPINE PRESIDENCY: A STUDY OF EXECUTIVE POWER 187 (1966); VICENTE G. SINCO, PHILIPPINE POLITICAL LAW: PRINCIPLES AND CONCEPTS 297 (10^th ed., 1954).

^[16] See 1933 Montevideo Convention on the Rights and Duties of States, Art. 1, 165 LNTS 19; JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 61 (2^nd ed. 2007).

^[17] Vinuya v. Executive Secretary, 633 Phil. 538, 570 (2010) (quoting the Dissenting Opinion of then Assoc. Justice Reynato S. Puno in Secretary of Justice v. Lantion, 379 Phil. 165, 233-234 [2004]).

^[18] CONSTITUTION, Art. II, Sec. 7.

^[19] CONSTITUTION (1973, as amended), Art. VIII, Sec. 14(1).

^[20] CONSTITUTION (1973, as amended), Art. VIII, Sec. 16.

^[21] CONSTITUTION (1935), Art. VII, Sec. 10(7).

^[22] CONSTITUTION, Art. VII, Sec. 21.

^[23] Quoth the Court: "For the role of the Senate in relation to treaties is essentially legislative in character; the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward our nation's pursuit of political maturity and growth." Bayan v. Zamora, 396 Phil. 623 (2000).

^[24] FOREIGN SERVICE INSTITUTE, AGREEMENTS ON UNITED STATES MILITARY FACILITIES IN PHILIPPINE MILITARY BASES 1947-1985 ix (Pacifico A. Castro revised ed. 1985).

^[25] Treaty of Peace Between the United States of America and the Kingdom of Spain, 10 Dec. 1898, 30 US Stat. 1754, T.S. No. 343 (1898) (entered into force 11 Apr. 1899).

^[26] Foreign Service Institute, supra note 24 at ix.

^[27] Id.

^[28] Id.

^[29] Id.

^[31] Id.; ROLAND G. SlMBULAN, THE BASES OF OUR INSECURITY: A STUDY OF THE US MILITARY BASES IN THE PHILIPPINES 13 (2^nd ed. 1985).

^[32] Hare-Hawes-Cutting Act, ch. 11, Sec. 2(1), 47 US Stat. 761 (1933) According to the law: "Sec. 2. The constitution formulated and drafted shall be republican in form, shall contain a bill of rights, and shall, either as a part thereof or in an ordinance appended thereto, contain provisions to the effect that, pending the final and complete withdrawal of the sovereignty of the United States over the Philippine Islands - (1) The Philippine Islands recognizes the right of the United States x x x to maintain military and other reservations and armed forces in the Philippines x x x."

^[33] Hare-Hawes-Cutting Act, Sees. 5 & 10. According to the law: "Sec. 5. All the property and rights which may have been acquired in the Philippine Islands by the United States under the treaties mentioned in the first section of this Act, except such land or other property as has heretofore been designated by the President of the United States for military and other reservations of the Government of the United States x x x are hereby granted to the government of the Commonwealth of the Philippine Islands when constituted, x x x x." "Sec. 10. On the 4th day of July, immediately following the expiration of a period often years from the date of the inauguration of the new government under the constitution provided for in this Act, the President of the United States shall by proclamation withdraw and surrender all right of possession, supervision, jurisdiction, control, or sovereignty then existing and exercised by the United States in and over the territory and people of the Philippine Islands, including all military and other reservations of the Government of the United States in the Philippines (except such land or property reserved under section 5 as may be redesignated by the President of the United States not later than two years after the date of such proclamation)." See FOREIGN SERVICE INSTITUTE, supra note 24, at ix; Simbulan, supra note 31.

^[34] Philippine Independence Act, US Pub. L. No. 73-127, Sees. 5 & 10, 48 US Stat. 456 (1934) [hereinafter Philippine Independence Act]. According to the law: " SEC. 10. (a) On the 4th day of July immediately following the expiration of a period of ten years from the date of the inauguration of the new government under the constitution provided for in this Act the President of the United States shall by proclamation withdraw and surrender all right of possession, supervision, jurisdiction, control, or sovereignty then existing and exercised by the United States in and over the territory and people of the Philippine Islands, including all military and other reservations of the Government of the United States in the Philippines (except such naval reservations and fueling stations as are reserved under section 5) x x x." See FOREIGN SERVICE INSTITUTE, supra note 24.

^[35] Philippine Independence Act, Sees. 5 & 10; FOREIGN SERVICE INSTITUTE, supra note 24.

^[36] Philippine Independence Act, Sec. 10.

^[37] FOREIGN SERVICE INSTITUTE, supra note 24, atx; Simbulan, supra note 31 at 13-14.

^[38] See Agreement Between the Republic of the Philippines and the United States of America Concerning Military Bases, preamble, 14 Mar. 1947, 43 UNTS 271 (entered into force 26 Mar. 1947) [hereinafter 1947 Military Bases Agreement]; FOREIGN Service INSTITUTE, supra note 24, at x.

^[39] Treaty of General Relations between the Republic of the Philippines and the United States of America, Art. I, 4 Jul. 1946, 7 UNTS 3 (1946) (entered into force 22 Oct. 1946) [hereinafter 1946 Treaty of General Relations]. According to the treaty: "The United States of America agrees to withdraw and surrender, and does hereby withdraw and surrender, all rights of possession, supervision, jurisdiction, control or sovereignty existing and exercised by the United States of America in and over the territory and the people of the Philippine Islands, except the use of such bases, necessary appurtenances to such bases, and the rights incident thereto, as the United States of America, by agreement with the Republic of the Philippines may deem necessary to retain for the mutual protection of the Republic of the Philippines and of the United States of America, x x x." The Philippine Senate concurred in this treaty (S. Res. 11, 1st Cong. [1946]). See also: Nicolas v. Romulo, 598 Phil. 262 (2009).

^[40] FOREIGN SERVICE Institute, supra note 24, at x-xi; Bay an v. Zamora, supra note 23.

^[41] 1947 Military Bases Agreement.

^[42] S. Res. 29, 1^st Cong. (1946); Philippine instrument of ratification was signed by the President on 21 Jan. 1948 and the treaty entered into force on 26 Mar. 1947; Nicolas v. Romulo, supra note 39.

^[43] FOREIGN SERVICE INSTITUTE, supra note 24, at xi; SIMBULAN, supra note 31, at 76-79.

^[44] 1947 Military Bases Agreement, Art. 1(3); FOREIGN SERVICE INSTITUTE, supra note 24, atxii; Simbulan, supra note 31, at 78-79.

^[45] FOREIGN SERVICE INSTITUTE, supra note 24, at xii-xv.

^[46] Id., at xiii.

^[47] Id., at xii.

^[48] Id., at xiii.

^[49] Id.

^[50] Id.

^[51] Id., at xiii-xiv.

^[52] Id.

^[53] Id.

^[54] Republic Act No. 9 - Authority of President to Enter into Agreement with US under Republic of the Phil. Military Assistance Act (1946). According to Section 1 thereof: "The President of the Philippines is hereby authorized to enter into agreement or agreements with the President of the United States, or with any of the agencies or instrumentalities of the Government of the United States, regarding military assistance to the armed forces of the Republic of the Philippines, in the form of transfer of property and information, giving of technical advice and lending of personnel to instruct and train them, pursuant to the provisions of United States Public Act Numbered Four hundred and fifty-four, commonly called the 'Republic of the Philippines Military Assistance Act,' under the terms and conditions provided in this Act."

^[55] Agreement Between the Government of the Republic of the Philippines and the Government of the United States of America on Military Assistance to the Philippines, 45 UNTS 47 (entered into force 21 Mar. 1947) [hereinafter 1947 Military Assistance Agreement].

^[56] FOREIGN SERVICE INSTITUTE, supra note 24, at xi; Simbulan, supra note 31, at 79-89.

^[57] 1947 Military Assistance Agreement, Sec. 6.

^[58] Exchange of Notes Constituting an Agreement Extending the Agreement Between the Government of the Republic of the Philippines and the Government of the United States of America on Military Assistance to the Philippines, 26 Jun. 1953, 213 UNTS 77 (entered into force 5 Jul. 1953) reproduced in FOREIGN SERVICE INSTITUTE, supra note 24, at 197-203. See Mutual Logistics Support Agreement (21 Nov. 2007). See generally: People v. Nazareno, 612 Phil. 753 (2009) (on the continued effectivity of the agreement).

^[59] See Mutual Defense Treaty between the Republic of the Philippines and the United States of America, 30 Aug. 1951, 177 UNTS 133 (entered into force 27 Aug. 1952) [hereinafter 1951 MDT]. According to its preamble: "The Parties to this Treaty x x x Desiring further to strengthen their present efforts to collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area x x x hereby agreed as follows[.]" See: Bayan v. Zamora, supra note 23.

^[60] S. Res. 84, 2nd Cong. (1952); FOREIGN SERVICE INSTITUTE, supra note 24, at 193-194; The Philippine instrument of ratification was signed by the President on 27 August 1952 and it entered into force on the same date upon the exchange of ratification between the Parties (Philippines and U.S.), and was proclaimed by the President by virtue of Proc. No. 341, S. 1952.

^[61] Nicolas v. Romulo, supra note 39 (citing U.S. Congressional Record, 82nd Congress, Second Session, Vol. 98 - Part 2, pp. 2594-2595).

^[62] 1951 MDT, Art. II.

^[63] 1951 MDT, Arts. IV-V.

^[64] COLONEL PATERNO C. PADUA, REPUBLIC OF THE PHILIPPINES UNITED STATES DEFENSE COOPERATION: OPPORTUNITIES AND CHALLENGES, A FILIPINO PERSPECTIVE 6 (2010).

^[65] Bay an v. Zamora, supra note 23; People's Movement for Press Freedom v. Manglapus, supra note 15.

^[66] See Treaty of Friendship, Cooperation and Security Between the Government of the Republic of the Philippines and the Government of the United States of America, 27 Aug. 1991 (rejected by the Senate on 16 Sept. 1991).

^[67] Id., Art. VII; Supplementary Agreement Two to the Treaty of Friendship, Cooperation and Security, Arts. I & 11(9).

^[68] Bayan v. Zamora, supra note 23.

^[69] Bayan v. Zamora, supra note 23; Joint Report of the Committee on Foreign Relations and the Committee oh National Defense and Security reproduced in SENATE OF THE PHILIPPINES, THE VISITING FORCES AGREEMENT: THE SENATE DECISION 206 (1999); Lim v. Executive Secretary, 430 Phil. 555 (2002).

^[70] Agreement regarding the status of U.S. military and civilian personnel, Exchange of notes between the DFA and the U.S. Embassy in Manila on Apr. 2, and June 11 and 21, 1993, Hein's No. KAV 3594 (entered into force 21 June 1993) [hereinafter Status of Forces Agreement of 1993], The agreement was extended on 19 September 1994; on 28 April 1995 (See Hein's No. KAV 4245); and 8 December 1995 (See Hein's No. KAV 4493). See also R. CHUCK MASON, STATUS OF FORCES AGREEMENT (SOFA); WHAT Is IT, AND HOW Has It Been Utilized? 14 (2012).

^[71] Joint Report of the Committee on Foreign Relations and the Committee on National Defense and Security reproduced in Senate OF THE PHILIPPINES, supra note 69; Lim v. Executive Secretary, supra note 69; Bayan v. Zamora, supra note 23.

^[72] Agreement Between the Government of the Republic of the Philippines and the Government of the United States of America Regarding the Treatment of United States Armed Forces Visiting the Philippines, Phil.-U.S., 10 Feb. 1998, TIAS No. 12931 (entered into force 1 Jun. 1999) [hereinafter VFA I], reproduced in SENATE OF THE PHILIPPINES, supra, at 257-266 (1999); Lim v. Executive Secretary, supra note 69.

^[73] VFA I, preamble. See: Lim v. Executive Secretary, supra note 69. In Lim, we explained that "It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe."

^[74] Bayan v. Zamora, supra note 23, at 637.

^[75] VFA I; Lim v. Executive Secretary, supra note 69.

^[76] Agreement between the Government of the United States of America and the Government of the Republic of the Philippines Regarding the Treatment of Republic of the Philippines Personnel Visiting the United States of America, Phil.-U.S., 9 Oct. 1998, TIAS No. 12931 [hereinafter VFA II].

^[77] Senate Resolution No. 18, 27 May 1999 reproduced in SENATE OF THE PHILIPPINES, supra note 63, at 185-190; Bayan v. Zamora, supra note 23.

^[78] Lim v. Executive Secretarv, supra note 69.

^[79] Id.

^[80] Mutual Logistics Support Agreement Between the Department of Defense of the United States of America and the Department of National Defense of the Republic of the Philippines, Preamble, 21 Nov. 2002 [hereinafter 2002 MLSA]. According to the preamble thereof, the parties "have resolved to conclude" the agreement in light of their "desir[e] to further the interoperability, readiness, and effectiveness of their respective military forces through increased logistic cooperation in accordance with the RP-US Mutual Defense Treaty, RP-US Visiting Forces Agreement or the RP-US Military Assistance Agreement." Consequently, Article II of the agreement provides that: "[it] shall be implemented, applied and interpreted by the Parties in accordance with the provisions of the Mutual Defense Treaty, the Visiting Forces Agreement or the Military Assistance Agreement and their respective constitutions, national laws and regulations."

^[81] 2002 MLSA, Preamble.

^[82] 2002 MLS A, Art. I.

^[83] 2002 MLS A, Art. lV(l)(a); PADUA, supra note 64, at 1-2.

^[84] See Mutual Logistics Support Agreement Between the Department of Defense of the United States of America and the Department of National Defense of the Republic of the Philippines, Art. IX, 8 Nov. 2007 (applied provisionally on 8 Nov. 2007; entered into force 14 Jan. 2009) [hereinafter 2007 MLSA]; Extension of the Mutual Logistics Support Agreement (RP-US-01) Between the Department of Defense of the United States of America and the Department of National Defense of the Republic of the Philippines (entered into force 6 Nov. 2012).

^[85] Memorandum of the OSG, pp. 8, 24 rollo (G.R. No. 212426, Vol. 1), pp. 438, 454.

^[86] See Note No. 1082 of the U.S. Embassy to the DFA dated 25 June 2014, Annex B of the Memorandum of the OSG, rollo (G.R. No. 212426, Vol. I), p. 477; Memorandum of the OSG, p. 8, rollo (G.R. No. 212426, Vol. I), p. 438.

^[87] Statement of Secretary Albert F. del Rosario On the signing of the PH-U.S. EDCA, DEPARTMENT OF FOREIGN Affairs (28 Apr. 2014) available at (last visited 5
DEPARTMENT OF FOREIGN AFFAIRS (28 Apr. 2014) available at (last visited 5 Nov. 2015).

^[88] EDCA; Memorandum of OSG, p. 3, rollo (G.R. No. 212426, Vol. 1), p. 433

^[89] Instrument of Ratification, Annex of A of the Memorandum of OSG, rollo, p. 476,

^[90] Oral Arguments TSN, 25 November 2014, pp. 119-120.

^[91] Rollo pp. 865-867, G.R. No. 212444

^[92] According to the Resolution: "Be it further resolved that this resolution expressing the strong sense of the Senate be formally submitted to the Supreme Court through the Chief Justice." Rollo (G.R. No. 212444) p 867.

^[93] Francisco v. House of Representatives, 460 Phil. 830, 914 (2003).

^[94] See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA 579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, 19 March 2013, 693 SCRA 574; Gutierrez v. House of Representatives Committee on Justice, 658 Phil. 322 (2011); Francisco v. House of Representatives, supra; Demetria v. Alba, 232 Phil. 222 (1987).

^[95] The Constitution provides: "SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

^[96] Angara v. Electoral Commission, (A Phil. 139, 156-158(1936).

^[97] Gutierrez v. House of Representatives Committee on Justice, supra note 94; Francisco v. House of Representatives, supra note 94; Tañada v. Angara, 338 Phil. 546 (1997); Oposa v. Factoran, G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809-810 (citing Llamas v. Orbos, 279 Phil. 920 [1991]; Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, 20 November 1991, 203 SCRA 767; Gonzales v. Macaraig, G.R. No. 87636, 19 November 1990, 191 SCRA 452; Coseteng v. Mitra, G.R. No. 86649, 12 July 1990, 187 SCRA 377; Daza v. Singson, 259 Phil. 980 [1989]; and I RECORD, CONSTITUTIONAL Commission 434-436 [1986]).

^[98] Oposa v. Factoran, supra, at 97.

^[99] Morfe v. Mutuc, 130 Phil. 415, 442 (1968); Angara v. Electoral Commission, supra note 96, at 178.

^[100] See: Francisco v. House of Representatives, supra note 93; United States v. Raines, 362 U.S. 17 (1960); and Angara v. Electoral Commission, supra note 96.

^[101] Demetria v. Alba, supra note 94, at 226.

^[102] Francisco v. House of Representatives, supra note 93, at 922-923.

^[103] Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348 (1936).

^[104] Francisco v. House of Representatives, supra note 93, at 923.

^[105] Id., at 922.

^[106] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 471 (2010); David v. Macapagal-Arroyo, 522 Phil. 705, 753 (2006); Francisco v. House of Representatives, supra note 93 at 892; Angara v. Electoral Commission, supra note 96, at 158.

^[107] Memorandum of OSG, p. 6, rollo, p. 436.

^[108] Rollo (G.R. No. 212444), pp. 865-867.

^[109] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 106, at 479.

^[110] Information Technology Foundation of the Philippines v. Commission on Elections, 499 Phil. 281, 304- 305 (2005) (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227 [1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 106, at 480; David v. Macapagal-Arroyo, supra note 106, at 753 (2006); Francisco v. House of Representatives, supra note 93, 879-880; Angara v. Electoral Commission, supra note 96, at 158.

^[111] Information Technology Foundation of the Philippines v. Commission on Elections, supra (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227 [1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 106, at 480; Lozano v. Nograles, 607 Phil. 334, 340 [2009]).

^[112] Angara v. Electoral Commission, supra note 96, at 158-159.
^[113] Memorandum of OSG, supra note 80. See also Note No. 1082, supra note 86.

^[114] Almario v. Executive Secretary, G.R. No. 189028, 16 July 2013, 701 SCRA 269, 302; Bayan Muna v. Romulo, 656 Phil. 246 (2011).

^[115] Funa v. CSC Chairman, G.R. No. 191672, 25 November 2014; Almario v. Executive Secretary, supra note 114, at 302; Bayan Muna v. Romulo, supra note 114, at 265; Bayan v. Zamora, supra note 23; Francisco v. House of Representatives, supra note 93, 895-896.

^[116] Bayan Muna v. Romulo, supra note 114 at 265; Pimentel v. Office of the Executive Secretary, supra note 15; Joya v. Presidential Commission on Good Government, G.R. No. 96541, 24 August 1993, 225 SCRA 568.

^[117] Funa v. CSC Chairman, supra note 115 Almario v. Executive Secretary, supra note 114 at 302; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 106, at 472; Francisco v. House of Representatives, supra note 93 at 895-896.

^[118] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 106.

^[119] Bayan Muna v. Romulo, supra note 114, at 265; Francisco v. House of Representatives, supra note 93, at 893.

^[120] Bayan Muna v. Romulo, supra note 114, at 266-267; Akbayan Citizens Action Party v. Aquino, supra note 15; Francisco v. House of Representatives, supra note 93; Tanada v. Tuvera, 220 Phil. 422 (1985).

^[121] Petition of Saguisag et al, p. 20, rollo (G.R. No. 212426, Vol. I), p. 22; Memorandum of Saguisag et al, p. 15, rollo (G.R. No. 212426, Vol. II), p. 985; Petition of Bayan et al, p. 9, rollo (G.R. No. 212444, Vol. I), p. 11; Memorandum of Bayan et al, pp. 19, 23, rollo (G.R. No. 212444, Vol. I), pp. 583, 587.

^[122] Petition of Saguisag et al, p. 10, rollo (G.R. No. 212426, Vol. I), p. 12; Petition of Bayan et al, pp. 9- 10, rollo (G.R. No. 212444, Vol. I), pp. 11-12; Memorandum of Bayan et al, pp. 19, 23, rollo (G.R. No. 212444, Vol. I), pp. 583, 587.

^[123] Oral Arguments TSN, 18 November 2014, pp. 19-20.

^[124] Consolidated Comment of the OSG, p. 4, rollo (G.R. No. 212426, Vol. I), p. 241; Memorandum of OSG, p. 7, rollo (G.R. No. 212426, Vol. I), p. 437.

^[125] Bayan v. Zamora, supra note 23.

^[126] Bayan v. Zamora, supra note 23 (citing Pascual v. Secretary of Public Works, 110 Phil. 331 [I960]; Maceda v. Macaraig, G.R. No. 88291, 31 May 1991, 197 SCRA 771; Lozada v. Commission on Elections, 205 Phil. 283 [1983]; Dumlao v. Commission on Elections, 184 Phil. 369 [1980]; Gonzales v. Marcos , 160 Phil. 637 [1975]).

^[127] See: Bayan v. Zamora, supra note 23 (citing Bugnay Const. & Development Corp. v. Laron, 257 Phil. 245 [1989]).

^[128] Lozano v. Nograles, supra note 111, at 342-343.

^[129] Petition of Bayan et al., p. 10, rollo (G.R. No. 212444, Vol. I), p. 12; Memorandum of Bayan et al., pp. 19-20, rollo (G.R. No. 212444, Vol. 1), pp. 583-584.

^[130] Consolidated Comment of the OSG, pp. 3-4, rollo (G.R. No. 212444, Vol. I), pp. 240-241; Memorandum of the OSG, pp. 4-7, rollo (G.R. No. 212444, Vol. I), pp. 434-437.

^[131] Pimentel v. Office of the Executive Secretary, supra note 15; Bayan v. Zamora, supra note 23; Philippine Constitution Association, v. Enriquez, G.R. No. 113105, 113174, 113766, 113888, 19 August 1994, 235 SCRA 506; Gonzales v. Macaraig, supra note 97; Mabanag v. Lopez Vito, 78 Phil. 1 (1947).

^[132] Philippine Constitution Association, v. Enriquez, supra.

^[133] Pimentel v. Office of the Executive Secretary, supra note 15; Philippine Constitution Association, v. Enriquez, supra.

^[134] Mabanag v. Lopez Vito [Dis. Op., J. Perfecto], supra note 131, at 35.

^[135] Pimentel v. Office of the Executive Secretary, supra note 15; Bayan v. Zamora, supra note 23; Philippine Constitution Association, v. Enriquez, supra note 131.

^[136] Pimentel v. Office of the Executive Secretary, supra note 15.

^[137] Bay an v. Zamora, supra note 23.

^[138] Petition of Saguisag et al., pp. 21-22, rollo (G.R. No. 212426, Vol. 1), pp. 23-24; Memorandum of Saguisag et al., pp. 15-17, rollo (G.R. No. 212426, Vol. II), pp. 985-987; Petition of Bayan et al., pp. 6, rollo (G.R. No. 212444, Vol. I), pp. 8; Memorandum of Bayan et al., pp. 19, 23, rollo (G.R. No. 212444, Vol. I), pp. 583, 587.

^[139] Consolidated Comment of the OSG, pp. 4-5, rollo (G.R. No. 212444, Vol. 1), pp. 241-242; Memorandum of the OSG, pp. 7-8, rollo (G.R. No. 212444, Vol. I), pp. 437-438.

^[140] Bayan Muna v. Romulo, supra note 114, at 265 (citing Constantino v. Cuisia, 509 Phil. 486 [2005]; Agan v. Philippine International Air Terminals Co., Inc., 450 Phil. 744 [2003]; Del Mar v. Philippine Amusement and Gaming Corporation, 400 Phil. 307 [2000]; Tatad v. Garcia, 313 Phil. 296 [1995]; Kilosbayan v. Guingona, G.R. No. 113375, 5 May 1994, 232 SCRA 110); Integrated Bar of the Phil. v. Zamora, 392 Phil. 618 (2000).

^[141] Kilosbayan, Inc. v. Guingona [Con. Op., J. Feliciano], supra, at 155-156 (1995) (cited in Magallona v. Ermita, 671 Phil. 243 (2011); Paguia v. Office of the President, 635 Phil. 568 [2010]; Francisco v. House of Representatives, supra note 93, at 899).

^[142] Memorandum of OSG, supra note 80. See also Note No. 1082, supra note 86.

^[143] Government of the Philippine Islands v. Springer, 50 Phil. 259 (1927).

^{[144 ]}Id.

^[145] Id.

^[146] CONSTITUTION, Art. VII, Sec. 5; Constitution (1973, as amended), Art. VII, Sec. 7; CONSTITUTION (1935, as amended), Art. VII, Sec. 7.

^[147] CONSTITUTION, Art. VII, Sec. 5.

^[148] Almario v. Executive Secretary, supra note 114.

^[149] CONSTITUTION (1973, as amended), Art. VII, Sec. 10: "The President shall have control of the ministries."

^[150] CONSTITUTION (1935, as amended), Art. VII, Sec. 10(1): "The President shall have control of all executive departments, bureaus or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed."

^[151] Administrative Code of 1987, Book III, Title I, Sec. 1.

^[152] CONSTITUTION, Art. X, Sec. 16: "The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed."

^[153] Ilusorio v. Ilusorio, 564 Phil. 746 (2007); Gonzalez v. Hongkong & Shanghai Banking Corp., 562 Phil. 841 (2007).

^[154] Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 557 Phil. 121 (2007).

^[155] La Perla Cigar & Cigarette Factory v. Capapas, 139 Phil. 451 (1969).

^[156] In re: R. McCulloch Dick, 38 Phil. 211 (1918).

^[157] Almario v. Executive Secretary, supra note 114.

^[158] Administrative Code of 1987, Book IV, Sec. 38.


^[159] Concurring Opinion of J. Carpio, Abakada Guro Party List v. Purisima. 584 Phil, 246 (2008)

^[160] Id.

^[161] Id. at 297.

^[162] Philippine Constitution Association v. Enhquez, supra note 131.

^[163] Government of the Philippine Islands v. Springer, supra note 143.

^[164] See CONSTITUTION, Art. VII, Sees. 17 & 18.

^[165] Dissenting Opinion of Justice Arturo D. Brion, p. 17.

^[166] Id., at 18.

^[167] Id., at 17-19.

^[168] Dissenting Opinion of Justice Arturo D. Brion, pp. 19-20.

^[169] Vinuya v. Romulo, supra note 17.

^[170] Memorandum of Bayan et al., pp. 29-32, rollo (G.R. No. 212444), pp. 593-596; Memorandum of Saguisag et al, pp. 17-29, 35-37, rollo (G.R. No. 212426, Vol. II), pp. 987-999, 1005-1007.

^[171] The pertinent text of SR 105 is reproduced below:

WHEREAS, the treaty known as RP-US EDCA (Enhanced Defense Cooperation Agreement) is at present subject of Supreme Court proceedings on the question of whether this treaty is valid and effective, considering that the Senate has not concurred with the treaty;

WHEREAS, the Office of the President argues that the document is not a treaty but is instead an executive agreement that allegedly does not require Senate concurrence;

WHEREAS, the only constitutional ground for the position taken by the Executive is the mere inclusion of the term "executive agreement" in the Constitution which provides: "All cases involving the constitutionality of an ... executive agreement ..." (Article VIII, Section 4, paragraph 2) as one of items included in the list of cases which the Supreme Court has power to decide.

WHEREAS, there is no other provision in the Constitution concerning a so-called executive agreement, and there is no mention at all of its definition, its requirements, the role of the Senate, or any other characteristic of, or protocol for, any such so-called "executive agreement";

WHEREAS, "executive agreement" is a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional mystery;

WHEREAS, in stark contrast to the lone mention of the term "executive agreement," the Constitution provides categorically:

(a) "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", (Article VII, Section 21);

(b) "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 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", (Article XVIII, Section 25);

WHEREAS, on the one hand, the Constitution is clear and categorical that Senate concurrence is absolutely necessary for the validity and effectivity of any treaty, particularly any treaty that promotes for foreign military bases, troops and facilities, such as the EDCA;

WHEREAS, under the rules of constitutional and statutory construction, the two constitutional provisions on Senate concurrence are specific provisions, while the lone constitutional provision merely mentioning an "executive agreement" is a general provision, and therefore, the specific provisions on Senate concurrence prevail over the general provision on "executive agreement";

WHEREAS, the Senate is aware of and obeys the ruling of the Supreme Court in Pimentel v. Office of the Executive Secretary, 462 SCRA 622 (2005);

WHEREAS, the ruling cited above does not apply to the EDCA case, because the Senate makes no attempt to force the President of the Philippines to submit the EDCA treaty for concurrence by the Senate, by this Resolution, the Senate merely takes a definitive stand on the non-negotiable power of the Senate to decide whether a treaty will be valid and effective, depending on the Senate concurrence[;]

WHEREFORE, be it hereby resolved by the Senate that the RP-US EDCA treaty requires Senate concurrence, in order to be valid and effective;

Be it further resolved, That this Resolution expressing the strong sense of the Senate be formally submitted to the Supreme Court through the Chief Justice.

^[172] Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735 SCRA 102; Land Bank v. Atlanta Industries, Inc., G.R. No. 193796, 2 July 2014, 729 SCRA 12; Roxas v. Ermita, G.R. No. 180030, June 10, 2014; Bayan Muna v. Romulo, supra note 114; Vinuya v. Romulo, supra note 17; Nicolas v. Romulo, supra note 39; Akbayan Citizens Action Party v. Aquino, supra note 15; Suplico v. NEDA, 580 Phil. 301 (2008); Neri v. Senate Committee on Accountability of Public Officers and Investigations, 572 Phil. 554 (2008); Abaya v. Ebdane, 544 Phil. 645 (2007); Senate of the Philippines v. Ermita, 522 Phil. 1 (2006); Pimentel v. Officeof the Executive Secretary, supra note 15; Bayan v. Zamora, supra note note 23; Chavez v. PCGG, 360 Phil. 133(1998).

^[173] Republic v. Quasha, 150-B Phil. 140 (1972); Adolfo v. Court of First Instance of Zambales, 145 Phil. 264 (1970); Commissioner of Internal Revenue v. Guerrero, 128 Phil. 197 (1967); Gonzales v. Hechanova, 118 Phil. 1065 (1963); Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961); USAFFE Veterans Ass'n., Inc. v. Treasurer of the Phil, 105 Phil. 1030 (1959); Uy Matiao & Co., Inc. v. City of Cebu, 93 Phil. 300 (1953); Abbot Laboratories v. Agrava, 91 Phil. 328 (1952).

^[174] Nicolas v. Romulo, supra note 39.

^[175] Chavez v. Judicial and Bar Council, supra note 94; Francisco v. House of Representatives, supra note 93 (quoting J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 719 [1970]; citing Baranda v. Gustilo, 248 Phil. 205 [1988]; Luz Farms v. Secretary of the Department of Agrarian Reform, 270 Phil. 151 [1990]; Ordillo v. Commission on Elections, 270 Phil. 183 [1990]).

^[176] Chavez v. Judicial and Bar Council, supra note 94; Ang Bagong Bayani-OFW v. Commission on Elections, 412 Phil. 308 (2001) (citing J.M. Tuason & Co., Inc. v. Land Tenure Administration, supra; Gold Creek Mining Corp. v. Rodriguez, 66 Phil 259, 264 [1938]; Ruben C. Agpalo, STATUTORY CONSTRUCTION 311 [1990]).

^[177] Chavez v. Judicial and Bar Council, supra note 94; Francisco v. House of Representatives, supra note 93 (quoting J.M. Tuason & Co., Inc. v. Land Tenure Administration, supra; citing Baranda v. Gustilo, supra, at 770; Luz Farms v. Secretary of the Department of Agrarian Reform, supra; Ordillo v. Commission on Elections, supra); Sarmiento v. Mison, 240 Phil. 505 (1987); Gold Creek Mining Corp. v. Rodriguez, supra.

^[178] Francisco v. House of Representatives, supra note 93 (quoting J.M. Tuason & Co., Inc. v. Land Tenure Administration, supra).

^[179] Ang Bagong Bayani-OFW v. Commission on Elections, supra note 176.

^[180] Ang Bagong Bayani-OFW v. Commission on Elections, supra note 176 (quoting the Separate Opinion of Justice Mendoza in Civil Liberties Union v. Executive Secretary, 272 Phil. 147 [1991]).

^[181] OED Online, available at , accessed on 28 October 2015; See also Merriam-Webster Online Dictionary, "allow" available at , accessed on 28 October 2015.

^[182] BLACK'S LAW DICTIONARY (2^nd ed).

^[183] OED Online, available at , accessed on 28 October 2015; See also Merriam-Webster Online Dictionary, available at , accessed on 28 October 2015.

^[184] G.R. No. 151445, 11 April 2002.

^[185] In the words of the Court: "The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory." Lim v. Executive Secretary, supra note 69.

^[186] Memorandum of OSG, pp. 14-27, rollo, pp. 444-457.

^[187] Dissenting Opinion of Justice Arturo D. Brion, p. 29.

^[188] Id., at 31.

^[189] Id.

^[190] Francisco v. House of Representatives, supra note 93 (quoting J.M. Tuason & Co,, Inc. v. Land Tenure Administration, supra note 175).

^[191] See IV RECORD, CONSTITUTIONAL COMMISSION 759, (18 Sep. 1986): "By inequalities, is the Commissioner referring to the one-sided provisions, the onerous conditions of the RP-US Bases Agreement?," Nicolas v. Romido, supra note 39, at 280 (2009).

^[192] See Treaty of General Relations between the Republic of the Philippines and the United States of America, October 22, 1946, Art. 1 (1946); Philippine Independence Act (Tydings-McDuffie Act), Pub.L. 73-127, 48 Stat. 456, (24 March 1934), Sees. 5 and 10; FOREIGN SERVICE INSTITUTE, supra note 24, at ix-x.

^[193] Land Bank v. Atlanta Industries, Inc., supra note 172; Bayan Muna v. Romulo, supra note 114; Nicolas v. Romulo, supra note 39; Neri v. Senate Committee on Accountability of Public Officers and Investigations, supra note 172; DBM-PS v. Kolonwel Trading, 551 Phil. 1030 (2007); Abaya v. Ebdane, supra note 172; Republic v. Quasha, supra note 173; Adolfo v. Court of First Instance of Zambales, supra note 173; Commissioner of Internal Revenue v. Guerrero, supra note 173; Gonzales v. Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea Trading, supra note 173; USAFFE Veterans Ass'n., Inc. v. Treasurer of the Phil, supra note 173; Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Abbot Laboratories v. Agrava, supra note 173; II RECORD, CONSTITUTIONAL COMMISSION, 544-546 (31 July 1986); CORTES, supra note 15, at 190; SlNCO, supra note 15, at 303-305.

^[194] Constitution, Art. VIII (Judicial Department), Sees. 4(2) & 5(2)(a); Constitution (1973, as amended), Art. X (The Judiciary), Sees. 2(2) & 5(2)(a), Art. XVII (Transitory Provisions), Sec. 12; CONSTITUTION (1935), Ordinance Appended to the Constitution or "Parity Amendment."

^[195] Republic Act No. 9184 (Government Procurement Reform Act) (2003), Sec. 4; Administrative Code of 1987, Book II, Sec. 18(2)(a); Presidential Decree No. 1464, as amended (Tariff and Customs Code of 1978), Sec. 402(f); Republic Act No. 1789 (Reparations Law) (1957), Sec. 18.; Commonwealth Act No. 733 (Acceptance of Executive Agreement Under Title IV of [United States] Public Law 371—79th Congress) (1946).

^[196] Neri v. Senate Committee on Accountability of Public Officers and Investigations, supra note 172; Republic v. Quasha, supra note 173; Commissioner of Internal Revenue v. Guerrero, supra note 173; Gonzales v. Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea Trading, supra note 173; USAFFE Veterans Ass'n., Inc. v. Treasurer of the Phil., supra note 173; Abbot Laboratories v. Agrava, supra note 173.

^[197]  II Record, Constitutional Commission, supra note 184.

^[198] Bayan Muna v. Romulo, supra note 114. See also SlNCO supra note 15.

^[199] See generally: Nicolas v. Romulo, supra note 39; Lim v. Executive Secretary, supra note 69.

^[200] See: Akbayan Citizens Action Party v. Aquino, supra note 15; Pimentel v. Office of the Executive Secretary, supra note 15. See CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code of 1987, Book IV (Executive Branch), Title I (Foreign Affairs), Sees. 3(1) and 20; SlNCO, supra note 15, at 297.

^[201] Pimentel v. Office of the Executive Secretary, supra note 15. See CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code of 1987, Book IV (Executive Branch), Title I (Foreign Affairs), Sees. 3(1) and 20; SlNCO, supra note 15, at 298.

^[202] See: CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code of 1987, Book III (Office of the President), Title I (Powers of the President), Sec. 1 and Book IV (Executive Branch), Title I (Foreign Affairs), Sees. 3(1) and 20 and Title III (Justice), Sec. 35(10); Pimentel v. Office of the Executive Secretary, supra note 15 (on ratification of treaties); Vinuya v. Executive Secretary, supra note 17 (on espousing claims against foreign governments); Abaya v. Ebdane, supra note 172 (on contracting foreign loans); People's Movement for Press Freedom v. Manglapus, supra note 15 (on treaty negotiations with foreign states); Sinco, supra note 15, at 298.

^[203] See SlNCO, supra note 15, at 297-298.

^[204] Commissioner of Customs v. Eastern Sea Trading, supra note 173.

^[205] Bayan Muna v. Romulo, supra note 114. See also SlNCO, supra note 15.

^[206] Commissioner of Customs v. Eastern Sea Trading, supra note 173.

^[207] II RECORD, CONSTITUTIONAL COMMISSION 544-546 (31 July 1986). See also Miriam Defensor Santiago, International Agreements in Constitutional Law: The Suspended RP-China (ZTE) Loan Agreement, 53 Ateneo L.J. 537, 539 (2008).

^[208] Bayan Muna v. Romulo, supra note 114, at 261; Gomales v. Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea Trading, supra note 173; II RECORD, CONSTITUTIONAL COMMISSION 544-546 (31 July 1986); CORTES, supra note 15; SiNCO, supra note 15.

^[209] See, e.g.: Bayan Muna v. Romulo, supra note 114 (on the transfer or surrender of US nationals in the Philippines who may be sued before international tribunals); Nicolas v. Romulo, supra note 39 (on agreement concerning the detention of a member of the U.S. Armed Forces, who was accused of committing a crime in the Philippines); Adolfo v. Court of First Instance of Zambales, supra note 173 (on exchange of notes pursuant to the 1947 MBA); Treaty of General Relations Between the Republic of the Philippines and the United States of America (1946).

See, e.g.: Republic v. Quasha, supra note 173; Commissioner of Internal Revenue v. Guerrero, supra note 173; Abbot Laboratories v. Agrava, supra note 173 (on the interpretation of the provision in the Philippine Patent Law of 1947 concerning the reciprocity measure on priority rights to be granted to U.S. nationals); Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Republic Act No. 9 - Authority of President to Enter into Agreement with US under Republic of the Phil. Military Assistance Act (1946).

^[211] See, e.g.: Land Bank v. Atlanta Industries, Inc., supra note 172 (on foreign loan agreement); Bayan Muna v. Romulo, supra note 114; DBM-PS v. Kolonwel Trading, supra note 193 (on foreign loan agreement); Abaya v. Ebdane, supra note 172 (on foreign loan agreement); Commissioner of Customs v. Eastern Sea Trading, supra note 173 (on foreign trade and financial agreements); USAFFE Veterans Ass'n., Inc. v. Treasurer of the Phil., supra note 173 (on conversion of unspent fund as a foreign loan). But see on limitations: Gonzales v. Hechanova, supra note 173.

^[212] See generally: Bayan v. Zamora, supra note 23; Philippe Gautier, 1969 Vienna Convention, Article 2 - Use of Terms, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY, Vol. I 35-36 (Olivier Corten & Pierre Klein eds. 2011).

^[213] See generally: Bayan v. Zamora, supra note 23; Philippe Gautier, 1969 Vienna Convention, Article 2 -Use of Terms, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY, VOL. 1 37 (Olivier Corten & Pierre Klein eds. 2011) (quoting Customs regime between Germany and Austria, Advisory Opinion, 1931 PC1J, Ser. A/B no. 41, p. 47).

^[214] Gonzales v. Hechanova, supra note 173.

^[215] Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of First Instance ofZambales, supra note 173).

^[216] See: Bayan Muna v. Romulo, supra note 114.

^[217] Pharmaceutical and Health Care Association v. Duque, 561 Phil. 386 (2007); Lim v. Executive Secretary, supra note 69; Secretary of Justice v. Lantion, supra note 17; Philip Morris, Inc. v. Court of Appeals, G.R. No. 91332, 16 July 1993, 224 SCRA 576.

^[218] See: Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of First Instance of Zambales, supra note 173); Civil Code, Art. 7.

^[219] See: Bayan Muna v. Romulo, supra note 114; Nicolas v. Romulo, supra note 39; Gonzales v. Hechanova, supra note 173; CIVIL CODE, Art. 7.

^[220] See CONSTITUTION, Art. VIII, Sec. 5(2); Civil Code, Art. 7.

^[221] CONSTITUTION, Art. 11, Sec. 8.

^[222] CONSTITUTION, Art. VI, Sec. 28(2).

^[223] CONSTITUTION, Art, VI, Sec. 28(4).

^[224] CONSTITUTION, Art. VII, Sec. 20.

^[225] CONSTITUTION, Art. XVIII, Sec. 25.

^[226] II RECORD, CONSTITUTIONAL COMMISSION 544 (31 July 1986).

^[227] II RECORD, CONSTITUTIONAL COMMISSION 545 (31 July 1986).

^[228] II RECORD, CONSTITUTIONAL COMMISSION 545 (31 July 1986).

^[229] SlNCO, supra note 15, at 297. See: Vinuya v. Executive Secretary, supra note 17 (on espousal of the claims of Philippine nationals against a foreign government); Pimentel v. Office of the Executive Secretary, supra note 15 (on ratification of international agreements); Secretary of Justice v. Lantion, supra note 17 (on temporarily withholding of the right to notice and hearing during the evaluation stage of the extradition process); People's Movement for Press Freedom v. Manglapus, supra note 15 (on the imposition of secrecy in treaty negotiations with foreign countries).

^[230] Vinuya v. Executive Secretary, supra note 17.

^[231] Lim v. Executive Secretary, supra note 69.

^[232] Nicolas v. Romulo, supra note 39.

^[233] Nicolas v. Romulo, supra note 39, at 291.

^[234] Bayan Muna v. Romulo, supra note 114, at 273. See also: Nicolas v. Romulo, supra note 39; Adolfo v. Court of First Instance of Zambales, supra note 173; Abbot Laboratories v. Agrava, supra note 173. Senate Resolution No. 18, dated 27 May 1999, which embodies the concurrence of the Senate in the VFA, stresses in its preamble that "nothing in this Resolution or in the VFA shall be construed as authorizing the President of the Philippines alone to bind the Philippines to any amendment of any provision of the VFA." (Emphases Supplied)

^[235] Lim v. Executive Secretary, supra note 69, at 571.

^[236] The provision states: "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, x x x." (Emphases supplied)

^[237] The provision states: "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." (Emphases supplied)

^[238] Lim v. Executive Secretary, supra note 69, at 572. Lim v. Executive Secretary, supra note 69, at 575.

^[240] According to the agreement: "[H]e will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA."

^[241] Nicolas v. Romulo, supra note 39, at 287.

^[242] Dissenting Opinion of Justice Marvic M.V.F. Leonen, p. 1.

^[243] EDCA, Art. V(l) and (4).

^[244] Dissenting Opinion of Justice Leonen, supra note 242, p.2.

^[245] Id.

^[246] Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De Castro, p. 25.

^[247] Lim v. Executive Secretary, supra note 69, at 575.

^[248] Dissenting Opinion of Justice Leonen, supra note 242.

^[249] Id.

^[250] Memorandum of OSG, pp. 14-27, rollo (G.R. No. 212426), pp. 444-457.

^[251] Memorandum of Saguisag et al., pp. 22-23, 38-49, rollo (G.R. No. 212426, Vol. II), pp. 992-993, 1008-1019; Memorandum of Bayan et al., pp. 35-41, rollo (G.R. No. 212444), pp. 599-605.

^[252] EDCA, Art. 11(1).

^[253] EDCA, Art. 11(2).

^[254] EDCA, Art. 11(3).

^[255] EDCA, Art. V1II(1).

^[256] According to this provision: "1. This Agreement deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT, which states that 'the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack,' and within the context of the VFA. This includes: xxxx (b) Authorizing access to Agreed Locations in the territory of the Philippines by United States forces on a rotational basis, as mutually determined by the Parties.

^[237] According to this provision: "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements.

^[258] VFA I, Art. I.

^[259] See: Djumantan v. Domingo, 310 Phil. 848 (1995).

^[260] Djumantan v. Domingo, 310 Phil. 848, 854 (1995).

^[261] Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as amended).

^[262] Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as amended), Sees. 10 & 11.

^[263] Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as amended), Sec. 29 & 30. Under Section 29, the following classes of aliens shall be excluded from entry into the Philippines: (1) Idiots or insane persons and persons who have been insane; (2) Persons afflicted with a loathsome or dangerous contagious disease, or epilepsy; (3) Persons who have been convicted of a crime involving moral turpitude; (4) Prostitutes, or procurers, or persons coming for any immoral purposes; (5) Persons likely to become, public charge; (6) Paupers, vagrants, and beggars; (7) Persons who practice polygamy or who believe in or advocate the practice of polygamy; (8) Persons who believe in or advocate the overthrow by force and violence of the Government of the Philippines, or of constituted lawful authority, or who disbelieve in or are opposed to organized government, or who advocate the assault or assassination of public officials because of their office, or who advocate or teach principles, theories, or ideas contrary to the Constitution of the Philippines or advocate or teach the unlawful destruction of property, or who are members of or affiliated with any organization entertaining or teaching such doctrines; (9) Persons over fifteen years of age, physically capable of reading, who cannot read printed matter in ordinary use in any language selected by the alien, but this provision shall not apply to the grandfather, grandmother, father, mother, wife, husband or child of a Philippine citizen or of an alien lawfully resident in the Philippines; (10) Persons who are members of a family accompanying an excluded alien, unless in the opinion of the Commissioner of Immigration no hardship would result from their admission; (11) Persons accompanying an excluded person who is helpless from mental or physical disability or infancy, when the protection or guardianship of such accompanying person or persons is required by the excluded person, as shall be determined by the Commissioner of Immigration; (12) Children under fifteen years of age, unaccompanied by or not coming to a parent, except that any such children may be admitted in the discretion of the Commissioner of Immigration, if otherwise admissible; (13) Stowaways, except that any stowaway may be admitted in the discretion of the Commissioner of Immigration, if otherwise admissible; (14) Persons coming to perform unskilled manual labor in pursuance of a promise or offer of employment, express or implied, but this provision shall not apply to persons bearing passport visas authorized by Section Twenty of this Act; (15) Persons who have been excluded or deported from the Philippines, but this provision may be waived in the discretion of the Commissioner of Immigration: Provided, however, That the Commissioner of Immigration shall not exercise his discretion in favor of aliens excluded or deported on the ground of conviction for any crime involving moral turpitude or for any crime penalized under Sections [45] and [46] of this Act or on the ground of having engaged in hoarding, black-marketing or profiteering unless such aliens have previously resided in the Philippines immediately before his exclusion or deportation for a period often years or more or are married to native Filipino women; (16) Persons who have been removed from the Philippines at the expense of the Government of the Philippines, as indigent aliens, under the provisions of section [43] of this Act, and who have not obtained the consent of the Board of Commissioners to apply for readmission; and (17) Persons not properly documented for admission as may be required under the provisions of this Act. (Emphasis supplied)

^[264] Djumantan v. Domingo, supra note 259.

^[265] Administrative Code of 1987, Book III (Office of the President), Title 1 (Powers of the President), Sees. 8 & 11 in relation to Commonwealth Act No. 613 (The Philippine Immigration Act of 1940), Sec. 52 and Act. No. 2711 (Revised Administrative Code of 1917), Sec. 69. See: Djumantan v. Domingo, supra note 259; Teo Tung v. Machlan, 60 Phil. 916 (1934).

^[266] See: Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as amended), Sees. 6, 12, 28 & 29; Djumantan v. Domingo, supra note 259; Salazar v. Achacoso, 262 Phil. 160 (1990); RONALDO P. Ledesma, Deportation Proceedings: Practice, Precedents, and Procedures 96 (2013).

^[267] Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as amended), Sec. 37. The provision enumerates as follows: (1) Any alien who enters the Philippines x x x by means of false and misleading statements or without inspection and admission by the immigration authorities x x x; (2) Any alien who enters the Philippines x x x, who was not lawfully admissible at the time of entry; (3) Any alien who, x x x, is convicted in the Philippines and sentenced for a term of one year or more for a crime involving moral turpitude committed within five years after his entry to the Philippines, or who, at any time after such entry, is so convicted and sentenced more than once; (4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs; (5) Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management of a house of prostitution, or is a procurer; (6) Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry; (7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non-immigrant; (8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines; (9) Any alien who commits any of the acts described in sections [45] and [46] of this Act, independent of criminal action which may be brought against him: x x x; (10) Any alien who, at any time within five years after entry, shall have been convicted of violating the provisions of the Philippine Commonwealth Act [653], otherwise known as the Philippine Alien Registration Act of 1941, or who, at any time after entry, shall have been convicted more than once of violating the provisions of the same Act; (11) Any alien who engages in profiteering, hoarding, or blackmarketing, independent of any criminal action which may be brought against him; (12) Any alien who is convicted of any offense penalized under Commonwealth Act [473], otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship; (13) Any alien who defrauds his creditor by absconding or alienating properties to prevent them from, being attached or executed. (Emphasis supplied) 268 Republic Act No. 10173, Sec. 34. According to the provision, "[i]f the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties prescribed."

^[269] See: Secretary of Justice v. Lantion, supra note 17. According to the Court: "An equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty x x x. The rule is recognized that while courts have the power to interpret treaties, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is accorded great weight, x x x This interpretation by the two governments cannot be given scant significance. It will be presumptuous for the Court to assume that both governments did not understand the terms of the treaty they concluded." (Emphasis supplied)

^[270] See Status of Forces Agreement of 1993, supra note 70. The International Law Commission explains that the subsequent practice of states in the application of the treaty may be taken into account in ascertaining the parties' agreement in the interpretation of that treaty. This is "well-established in the jurisprudence of international tribunals" even before the Vienna Convention on the Law of Treaties was concluded. See International Law Commission, Draft Articles on the Law of Treaties with Commentaries, 1966(11) Y.B.I.L.C. 187, at 221-222 (citing Russian Claim for Indemnities [Russia/Turkey], XI R.I.A.A. 421, 433 [1912] [Nov. 11]; Competence of the ILO to Regulate Agricultural Labour, 1922 P.C.l.J. [ser. B] No. 2, 39 [Aug. 12]; Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne, 1925 P.C.l.J. [ser. B] No. 12, 24 [Nov. 21]; Brazilian Loans, 1929 P.C.l.J. (ser. A) No. 21,119 [Jul. 12]; and Corfu Channel [U.K. v. Albania], 1949 l.C.J. 4, 25 [Apr. 9]).

^[271] Lim v. Executive Secretary, supra note 69, at 571-572.

^[272] Nicolas v. Romulo, supra note 39, at 284.

^[273] Id.

^[274] Lim v. Executive Secretary, supra note 69, at 575; Joint Report of the Committee on Foreign Relations and the Committee on National Defense and Security reproduced in SENATE OF THE PHILIPPINES, supra note 69, at 206.

^[275] Status of Forces Agreement of 1993, supra note 70. According to Note No. 93-2301 dated 11 June 1993 of the DFA to the U.S. Embassy, "The [DFA] x x x has the honor to reaffirm its position that all U.S. military and civilian personnel present in the Philippines participating in activities undertaken in relation to the Mutual Defense Treaty will be accorded the same status as the U.S. Embassy's technical and administrative personnel who are qualified to enter the Philippines under existing Philippine laws. The Department further proposes that the procedures as well as the arrangements for these MDT-related activities are to be mutually agreed upon by the MDB, subject to the guidelines of the Council of Ministers."

^[276] Lim v. Executive Secretary, supra note 69. See also Joint Report of the Committee on Foreign Relations and the Committee on National Defense and Security reproduced in SENATE OF THE PHILIPPINES, supra note 69, at 230-231.

^[277] Joint Report of the Committee on Foreign Relations and the Committee on National Defense and Security reproduced in Senate OF THE PHILIPPINES, supra note 69, at 205-206, 231.

^[278] EDCA, Art. 11(1).

^[279] EDCA, Art. 1(3).

^[280] EDCA, Art. II 1(1).

^[281] EDCA, Art. 111(4) & (6).

^[282] EDCA, Art. VI(3).

^[283] EDCA, Art. VII(l).

^[284] EDCA, Art. VII(2).

^[285] According to the Agreed Minutes of the Discussion between the former Philippine Vice-President/Secretary of Foreign Affairs Teofisto T. Guingona, Jr. and U.S. Assistant Secretary of State for East Asian and Pacific Affairs James Kelly, both countries approved the Terms of Agreement of the Balikatan exercises. See: rollo (G.R. No. 151445), pp. 99-100.

^[286] Lim v. Executive Secretary, supra note 69, at 565-566.

^[287] Memorandum of Saguisag et al., pp. 43-46, rollo (G.R. No. 212426, Vol. II), pp. 1013-1016.

^[288] Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De Castro, p. 24.

^[289] Dissenting Opinion of Justice Brion, pp. 48-51.

^[290] Aileen S.P. Baviera, Implications of the US-Philippines Enhanced Defense Cooperation Agreement, ASIA PACIFIC BULLETIN No. 292,9 May 2014.

^[291] See CONSTITUTION, Art. VII, Sec. 18 in relation to Art. II, Sec. 3.

^[292] See Administrative Code of 1987, Book IV (Executive Branch), Title I (Foreign Affairs), Sec. 3(1) in relation to CONSTITUTION, Art. VII, Sec. 1 and Art. II, Sec. 3; Akbayan Citizens Action Party v. Aquino, supra note 15; Pimentel v. Office of the Executive Secretary, supra note 15; Bayan v. Zamora, supra note 23.

^[293] Vinuya v. Executive Secretary, supra note 17.

^[294] Id.

^[295] See generally Joint Report of the Committee on Foreign Relations and the Committee on National Defense and Security reproduced in SENATE OF THE PHILIPPINES, supra note 69, at 206. According to the report: "The Mutual Defense Board programs an average of 10 to 12 exercises annually. Participating U.S. personnel, numbering from 10 to more than 1,000, stay in Philippine territory from four days to four weeks, depending on the nature of the exercise."

^[296] Memorandum of Bayan, pp. 47-51, rollo (G.R. No. 212444), pp. 611-615

^[297] EDCA, Art. 111(1).

^[298] EDCA, Art. IV(4).

^[299] EDCA, Art. IV(5).

^[300] Commonwealth Act No. 541.

^[301] Republic Act No. 10951.

^[302] Executive Order No. 184 (2015).

^[303] Republic Act No. 5487 - The Private Security Agency Law, as amended by P.D. No. 11.

^[304] Glenn Defense: SBMA suspension doesn't cover all our functions, RAPPLER, available at (last visited 3 December 2015).

^[305] Glenn Defense: SBMA suspension doesn't cover all our functions, RAPPLER, available at (last visited 3 December 2015); Norman Bordadora, US Navy contractor liable for Subic waste dumping, Philippine Daily Inquirer, available at (last visited 3 December 2015); Matikas Santos, US navy contractor dumped millions of liters of wastes in Subic, Philippine Daily Inquirer, available at (last visited 3 December 2015).

^[306] Vincent Cabreza, US Embassy says dumping of untreated waste in Subic not condoned, PHILIPPINE Daily Inquirer, available at (last visited 3 December 2015).

^[307] Robert Gonzaga, Contractor could face sanctions from US navy for violations, PHILIPPINE DAILY INQUIRER, available at (last visited 3 December 2015).

^[308] Lim v. Executive Secretary, supra note 69, at 580.

^[309] See R.A. No. 10591 or the Comprehensive Firearms and Ammunition Regulation Act. According to Section 4, Article II thereof: In order to qualify and acquire a license to own and possess a firearm or firearms and ammunition, the applicant must be a Filipino citizen, at least twenty-one (21) years old and has gainful work, occupation or business or has filed an Income Tax Return (ITR) for the preceding year as proof of income, profession, business or occupation. In addition, the applicant shall submit the following certification issued by appropriate authorities attesting the following: x x x x." On the other hand, Section 5 states: "A juridical person maintaining its own security force may be issued a regular license to own and possess firearms and ammunition under the following conditions: (a) It must be Filipino-owned and duly registered with the Securities and Exchange Commission (SEC); (b) It is current, operational and a continuing concern; (c) It has completed and submitted all its reportorial requirements to the SEC; and (d) It has paid all its income taxes for the year, as duly certified by the Bureau of Internal Revenue, x x x x. Security agencies and LGUs shall be included in this category of licensed holders but shall be subject to additional requirements as may be required by the Chief of the PNP." Finally, Section 22 expresses: "A person arriving in the Philippines who is legally in possession of any firearm or ammunition in his/her country of origin and who has declared the existence of the firearm upon embarkation and disembarkation but whose firearm is not registered in the Philippines in accordance with this Act shall deposit the same upon written receipt with the Collector of Customs for delivery to the FEO of the PNP for safekeeping, or for the issuance of a permit to transport if the person is a competitor in a sports shooting competition. If the importation of the same is allowed and the party in question desires to obtain a domestic firearm license, the same should be undertaken in accordance with the provisions of this Act. If no license is desired or leave to import is not granted, the firearm or ammunition in question shall remain in the custody of the FEO of the PNP until otherwise disposed of in accordance with law." (Emphasis supplied)

^[310] Article 40 of the Labor Code, as amended, provides: "Employment permit of non-resident aliens. Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise," (Emphasis supplied)

^[311] Supra notes 263 and 267.

^[312] Memorandum of Saguisag et al, pp. 25-29, rollo (G.R. No. 212426, Vol. II), pp. 995-999.

^[313] PH-US MDB and SEB Convenes, DEPARTMENT OF NATIONAL DEFENSE, available at (last visited 3 December 2015)

^[314] EDCA, Art. IV(3).

^[315] EDCA, Art. IV(3).

^[316] EDCA, Art. IV(3).

^[317] EDCA, Art. IV(1).

^[318] Such rights gleaned from Title II, Chapter 1 of the Civil Code are (Cojuangco v. Sandiganbayan, 604 Phil. 670 [2009]): the right to possess, to use and enjoy, to abuse or consume, to accessories, to dispose or alienate, to recover or vindicate, and to the fruits.

^[319] Memorandum of Saguisag et al, pp. 29-33, rollo (G.R. No. 212426, Vol. II), pp. 999-1003; Memorandum of Bayan et al., pp. 41-71 , rollo (G.R. No. 212444), pp.605-635 .

^[320] Memorandum of Saguisag et al, pp. 33-35, rollo (G.R. No. 212426, Vol. II), pp. 1003-1005.

^[321] Id., pp. 1000-1001.

^[322] Id., p. 1000. EDCA, Arts. 1(1 )(b), 1(2), 1(3), & 111(4).

^[323] Id., p. 1002.

^[324] See generally CIVIL CODE, Arts. 427-429.

^[325] Memorandum of Saguisag et al., pp. 33-35, rollo (G.R. No. 212426, Vol. II), pp. 1001-1002.

^[326] Memorandum of Saguisag et al., pp. 33-35, rollo (G.R. No. 212426, Vol. II), pp. 1001-1002.

^[327] CONSTITUTION, Art. XII, Sec. 7.

^[328] P.D. No. 1227 - Punishing Unlawful Entry into Any Military Base in the Philippines, Sec. 2.

^[329] IV RECORD, CONSTITUTIONAL COMMISSION 648 (15 September 1986).

^[330] R.A. No. 7227.

^[331] PADUA, supra note 64.

^[332] EDCA, Art. 11(4).

^[333] Memorandum of OSG, p. 23, rollo (G.R. No. 212426), p. 453.

^[334] IV RECORD, CONSTITUTIONAL COMMISSION 628-630 (15 September 1986).

^[335] Id. at 628.

^[336] Id. at 629.

^[337] IV RECORD, CONSTITUTIONAL COMMISSION 630-631 (15 September 1986).

^[338] Id. at 630.

^[339] Id. at 631.

^[340] IV RECORD, CONSTITUTIONAL COMMISSION 632-634 (15 September 1986).

^[341] Id. at 632.

^[342] IV RECORD, CONSTITUTIONAL COMMISSION 634-635 (15 September 1986)

^[343] Id. at 634.

^[344] IV RECORD, CONSTITUTIONAL COMMISSIOn 635-636 (15 September 1986).

^[345] Id. at 636.

^[346] IV RECORD, CONSTITUTIONAL COMMISSION 637-639 (15 September 1986)

^[347] Id. at 638.

^[348] Id. at 639.

^[349] IV RECORD, CONSTITUTIONAL COMMISSION 640-641(15 September 1986).

^[350] Id. at 640.

^[351] IV RECORD, CONSTITUTIONAL COMMISSION 641-645 (15 September 1986)

^[352] Id. at 643.

^[353] Id. at 644.

^[354] IV RECORD, CONSTITUTIONAL COMMISSION 645-649 (15 September 1986).

^[355] Id. at 645.

^[356] IV RECORD, CONSTITUTIONAL COMMISSION 649-652 (15 September 1986).

^[357] Id. at 650.

^[358] Id. at 651.

^[359] Id. at 652.

^[360] IV Record, Constitutional Commission 652-653 (15 September 1986).

^[361] Id.

^[362] IV Record, Constitutional Commission 653-654 (15 September 1986).

^[363] Id. at 653.

^[364] Id. at 654.

^[365] CIVIL CODE, Art. 419.

^[366] CIVIL CODE, Art. 420.

^[367] CU Art. 433.

^[368] EDCA, Art. V.

^[369] EDCA, Art. 11(4).

^[370] Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission, 102 Phil. 596 (1957).

^[371] EDCA, Art. 111(2).

^[372] EDCA, Art. III(l).

^[373] EDCA, Art. 111(4).

^[374] EDCA, Art. 111(5).

^[375] 1947 MBA, III(2)(a).

^[376] V RECORD, CONSTITUTIONAL COMMISSION 240 (30 September 1986).

^[377] V RECORD, CONSTITUTIONAL COMMISSION 240-241 (30 September 1986).

^[378] Tahada v. Angara, supra note 97.

^[379] Tydings-McDuffie Act, Section 10(a) Pub.L. 73-127, 48 Stat. 456 (enacted 24 March 1934).

^[380] BLACK'S LAW DICTIONARY 770 (6th ed. 1990). See also J. Carpio's Dissenting Opinion in Liban v. Gordon, 654 Phil. 680 (2011).

^[381] Memorandum of Saguisag, p. 56, rollo (G.R. No.212426) p 594.

^[382] Id. at 596.

^[383] Id. at 460.

^[384] G.R. No. 108813, 15 December 1994, 239 SCRA 224, 229.

^[385] R.A. No. 6975 - Department of the Interior and Local Government Act of 1990, Sec. 86; P.D. No. 531, Sees. 4, 5, and 6.

^[386] Local Government Code of 1991, Sec. 444.

^[387] Local Government Code of 1991, Sec. 455.

^[388] Rollo, (G.R. No. 212426), pp. 515-525.

^[389] Id. at 597.

^[390] Id.

^[391] Id. at 598.

^[392] Id. at 599.

^[393] Id. at 599, FN 76

^[394] Id. at footnote 77.

^[395] EDCA, preamble.

^[396] See: Bayan Mima v. Romulo, supra note 114; Bayan v. Zamora, supra note 23; USAFFE Veterans Ass 'n., Inc. v. Treasurer of the Phil, supra note 173; Vienna Convention on the Law of the Treaties, Art. 27 (on internal law and observance of treaties) in relation to Art. 46 (on provisions of internal law regarding competence to conclude treaties).

^[397] "Under EDCA, before constructions and other activities can be undertaken, prior consent of the Philippines will have to be secured through the Mutual Defense Board (MDB) and Security Engagement Board (SEB) which were established under the MDT and the VFA." . See Q&A on the Enhanced Defense Cooperation Agreement, OFFICIAL GAZETTE, available at (last accessed 3 December 2015).

^[398] UNITED STATES DEPARTMENT OF DEFENSE, DOCTRINE FOR THE ARMED FORCES OF THE UNITED STATES: Joint Publication 1, Chap. 1-18 (2013).

^[399] Id., at Chap. V-6.

^[400] See id., at Chap. V-2.

^[401] EDCA, Art. 111(4).

^[402] EDCA, Art. 111(4).

^[403] Sarmiento v. Mison, supra note 177. The case also formulated this principle as follows: "an express enumeration of subjects excludes others not enumerated."

^[404] Rebuttal of Commissioner Nolledo, supra note 362.

^[405] Vienna Convention on Diplomatic Relations, Arts. 31-40, 500 U/N.T.S. 95 (1961).

^[405] See BLACK'S LAW DICTIONARY 1523 (9th ed. 2009).

^[407] See BLACK'S LAW DICTIONARY 927 (9th ed. 2009).

^[408] EDCA, Article 1(1 )(b).

^[409] Laurel v. Misa, 77 Phil. 856 (1947).

^[410] EDCA. Art. VI(2).

^[411] EDCA, Art. VI(3).

^[412] Liwanag v. Hamill, 98 Phil. 437 (1956).

^[413] 1947 MBA, Art. XIII.

^[414] Bayan v. Zamora, supra note 23.

^[415] Memorandum of Saguisag, p. 72, rollo (G.R. No. 212426), p. 610.

^[416] Id.

^[417] Id.

^[418] Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

^[419] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3 (1977) [hereinafter Geneva Convention Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609 (1977).

^[420] Articles 48, 51(2) and 52(2), Protocol I, supra note 419.

^[421] 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287; Id.

^[422] JOHN WOODCLIFFE, THE PEACETIME USE OF FOREIGN MILITARY INSTALLATIONS UNDER MODERN INTERNATIONAL LAW 30(1992).

^[423] Id.

^[424] Id. at 32.

^[425] Id.

^[426] Id.

^[427] Jean-Marie Henckaerts and Louise Doswald-Beck, Customary international Humanitarian law-Volume I: Rules 34-36 (2005)

^[428] Art. 52, Protocol I, supra note 419.

^[429] Art. 48, Id..

^[430] Art. 4., Id.

^[431] Memorandum of Saguisag, pp. 66-70, rollo (G.R. No. 212426), pp. 604-608.

^[432] Article 11(6) thereof provides: "Agreed facilities and areas" means the state owned facilities and areas in the territory of the Republic of Bulgaria listed in Annex A, and such other state owned facilities and areas, as may be mutually agreed by the Parties.

^[433] Article I(g) thereof provides: "Agreed facilities and locations" means those sites, installations, and infrastructure to which the United States is authorized access and use by Colombia in connection with activities carried out within the framework of this Agreement.

^[434] Article 2(i) thereof provides: "agreed facilities and areas" shall mean areas, facilities, buildings or structures in the territory of the Republic of Poland, owned by the Republic of Poland, and used by United States forces with the consent of the Republic of Poland.

^[435] Article I thereof provides: "Agreed Facilities and Areas" means the facilities and areas in the territory of Australia provided by Australia which may be listed in Annex A appended to this Agreement, and such other facilities and areas in the territory of Australia as may be provided by Australia in the future, to which United States Forces, United States Contractors, dependants, and other United States Government personnel as mutually agreed, shall have the right to access and use pursuant to this Agreement.

^[436] Article 1(7) thereof provides: "Agreed facilities and areas" means the facilities and areas in the territory of Afghanistan provided by Afghanistan at the locations listed in Annex A, and such other facilities and areas in the territory of Afghanistan as may be provided by Afghanistan in the future, to which United States forces, United States contractors, United States contractor employees, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement.

^[437] US-Bulgaria Defense Cooperation Agreement, Arts. 11(6) & IV(1); US-Colombia Defense Cooperation Agreement, Art. IV; US-Poland Status of Forces Agreement, Art. 3(2); US-Australia Force Posture Agreement, Arts. 1, IV;

^[438] US-Bulgaria Defense Cooperation Agreement, Art. IV(5); US-Colombia Defense Cooperation Agreement, Art. IV; US-Poland Status of Forces Agreement, Art. 3(1); US-Australia Force Posture Agreement, Art. IV(7).

^[439] US-Bulgaria Defense Cooperation Agreement, Art. IV(7); US-Colombia Defense Cooperation Agreement, Arts. IV(7), XI; US-Poland Status of Forces Agreement, Art. 3(6); US-Australia Force Posture Agreement, Art. IV(8).

^[440] US-Bulgaria Defense Cooperation Agreement, Arts. 11(6), IV(1) & VI(1); US-Colombia Defense Cooperation Agreement, Art. IV(6); US-Poland Status of Forces Agreement, Art. 4(1); US-Australia Force Posture Agreement, Art. XIV(l).

^[441] US-Bulgaria Defense Cooperation Agreement, Art. IV(8); US-Colombia Defense Cooperation Agreement, Art. 1V(4); US-Poland Status of Forces Agreement, Art. 3(10); US-Australia Force Posture Agreement, Art. X(2).

^[442] 2002 MLSA, Art. 111(2); 2007 MLSA. Art. 111(2).

^[443] 2002 MLSA, Art. IV(l)(a)(2); 2007 MLSA, Art. lV(l)(a)(2).

^[444] 2002 MLSA, Art. IV(l)(a)(3); 2007 MLSA, Art. IV(l)(a)(3).

^[445] EDCA, Art. V(l).

^[446] EDCA, Art. V(2).

^[447] EDCA, Art. 111(1).

^[448] EDCA, Art. IV(l).

^[449] 2002 MLS A, Art. IV(l)(a)(2); 2007 MLSA, Art. IV(l)(a)(2).

^[450] 2002 MLSA, Art. IV(l)(a)(3); 2007 MLSA, Art. IV(l)(a)(3).

^[451] 2002 MLSA, Art. III(l); 2007 MLSA, Art. III(l).

^[452] EDCA, Art. IV(1).

^[453] MDT, Arts. III, IV. and V.

^[454] Rollo, p. 464.

^[455] EDCA, Art. IV(6).

^[456] Rollo, pp. 34-35.

^[457] Article II, Sec. 8.

^[458] EDCA. Art. VI 1(1).

^[459] National Power Corporation v. Province of Quezon, 610 Phil. 456 (2009).

^[460] National Power Corporation v. Province of Quezon, supra.

^[461] EDCA, Art. 111(6); Art. IV(2); Art. V(l, 4); Art. VIII(2).

^[462] Statement of Secretary Albert del Rosario before the Permanent Court of Arbitration, Peace Palace, The Hague, Netherlands, 7 July 2015, OFFICIAL GAZETTE, available at (last visited 3 December 2015); Statement on Recent Incidents in the Philippines' Bajo de Masinloc, 4 February 2015, DEPARTMENT OF FOREIGN AFFAIRS, available at (last visited 21 October 2015).

^[463] The Republic of the Philippines v. The People's Republic of China, Case No. 2013-19 (Perm Ct. Arb.) (last visited 13 October 2015).

^[464] Comprehensive Agreement on the Bangsamoro, OFFICIAL GAZETTE, available at (last visited 21 October 2015).

^[465] Frinston Lim, Authorities believe Abu Sayyaf behind abduction of Filipina, 3 foreigners, 22 September 2015, PHILIPPINE DAILY INQUIRER, available at


^[466] Republic Act No. 10349 (2012); The Philippine Navy, Picture of the Future: The Philippine Navy Briefer, available at (last visited 3 December 2015).

^[467] Joel Locsin, NDRRMC: Yolanda death toll hits 6,300 mark nearly 6 months after typhoon, 17 April 2014, GMA News Online (last accessed 3 December 2015).

^[468] Typhoon Yolanda, OFFICIAL GAZETTE, available at (last visited 3 December 2015).

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CARPIO, J.:

The threshold issue in this case is whether the Enhanced Defense Cooperation Agreement (EDCA) merely implements the existing and ratified 1951 Mutual Defense Treaty^[1] (MDT), or whether the EDCA is a new treaty requiring Senate ratification to take effect.

The answer to this question turns on whether, under present circumstances, the attainment of the purpose of the MDT requires the EDCA. The fundamental rule in treaty interpretation is that a treaty must be interpreted "in the light of its object and purpose."^[2]

As stated in the MDT, the purpose of the United States (U.S.) and the Philippines in forging the MDT is to "declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack." If the MDT cannot attain this purpose without the EDCA, then the EDCA merely implements the MDT and Executive action is sufficient to make the EDCA valid.

A ratified treaty like the MDT must be interpreted to allow the Executive to take all necessary measures to insure that the treaty's purpose is attained. A ratified treaty cannot be interpreted to require a second ratified treaty to implement the first ratified treaty, as a fundamental rule is that a treaty must be interpreted to avoid a "result which is manifestly absurd or unreasonable."^[3] This is particularly true to a mutual defense treaty the purpose of which is mutual self-defense against sudden armed attack by a third state.

However, if the MDT can attain its purpose without the EDCA, then the EDCA is a separate treaty that requires Senate ratification. I shall discuss why, under present circumstances, the EDCA is absolutely necessary and essential to attain the purpose of the MDT.

With the departure in 1992 of U.S. military forces from Subic Naval Base and Clark Air Base in Luzon, a power vacuum resulted in the South China Sea. As in any power vacuum, the next power would rush in to fill the vacuum. Thus, China, the next power after the U.S., filled the power vacuum in the South China Sea, which includes the West Philippine Sea.^[4]

In early 1995, barely three years after the departure of U.S. military forces from the Philippines, China seized Mischief Reef from the Philippines. There was no power to deter China as the U.S. forces had left. The Philippines did not anticipate that China would rush in to fill the power vacuum, or if the Philippines anticipated this, it did not upgrade its military to deter any Chinese aggression. After China seized Mischief Reef in 1995, the Philippines still did not upgrade its military, particularly its navy.

In 2012, China seized Scarborough Shoal from the Philippines, which could offer no armed resistance to Chinese naval forces. The Scarborough Shoal seizure finally made the Philippine Government realize that there was an absolute need to deter China's creeping invasion of Philippine islands, rocks and reefs in the West Philippine Sea. Thus, the Philippines rushed the modernization of its navy and air force. The Philippines also agreed with the U.S. to use the MDT to preposition U.S. war materials in strategic locations in the Philippines, particularly in the islands of Palawan and Luzon facing the West Philippine Sea.

In modern warfare, the successful implementation of a mutual defense treaty requires the strategic prepositioning of war materials. Before the advent of guided missiles and drones, wars could take months or even years to prosecute. There was plenty of time to conscript and train soldiers, manufacture guns and artillery, and ship war materials to strategic locations even after the war had started. Today, wars could be won or lost in the first few weeks or even first few days after the initial outbreak of war.

In modern warfare, the prepositioning of war materials, like mobile anti-ship and anti-aircraft missiles, is absolutely necessary and essential to a successful defense against armed aggression, particularly for a coastal state like the Philippines. This is what the EDCA is all about - the prepositioning in strategic locations of war materials to successfully resist any armed aggression. Such prepositioning will also publicly telegraph to the enemy that any armed aggression would be repelled. The enemy must know that we possess the capability, that is, the war materials, to defend the country against armed aggression. Otherwise, without such capability, we telegraph to the enemy that further seizure of Philippine islands, rocks and reefs in the South China Sea would be a walk in the park, just like China's seizure of Mischief Reef and Scarborough Shoal. Without such capability, we would practically be inviting the enemy to seize whatever Philippine island, rock or reef it desires to seize in the West Philippine Sea.

Since 2014, China has started building artificial islands in the Spratlys out of submerged areas like Mischief Reef and Subi Reef, or out of rocks that barely protrude above water at high tide like Fiery Cross Reef. China has so far created a 590-hectare artificial island in Mischief Reef which is only 125 nautical miles (NM) from Palawan, well within the Philippines' Exclusive Economic Zone (EEZ). In comparison, San Juan City is 595 hectares in area. China has built a 390-hectare artificial island in Subi Reef, outside the Philippines' EEZ but within its Extended Continental Shelf (ECS). China has created a 265-hectare artificial island in Fiery Cross Reef, outside the Philippines' EEZ but within its ECS.

China claims that its island-building activities are for civilian purposes but the configuration of these artificial islands shows otherwise. The configuration of China's Mischief Reef island, which is China's largest artificial island in the Spratlys, is that of a combined air and naval base, with a 3,000-meter airstrip.^[5] The configuration of China's Subi Reef island is that of a naval base with a 3,000-meter airstrip. The configuration of China's Fiery Cross Reef island is that of an airbase with a 3,000-meter airstrip and a harbor for warships.

These three air and naval bases form a triangle in the Spratlys, surrounding the islands occupied by the Philippines.

Mischief Reef, located mid-way between Palawan and Pagasa, is ideally situated to block Philippine ships re-supplying Pagasa, the largest Philippine-occupied island in the Spratlys. Mischief Reef is also close to the gas-rich Reed Bank, the gas field that should replace Malampaya once Malampaya runs out of gas in 10 to 12 years. Malampaya supplies 40% of the energy requirement of Luzon. The Reed Bank and Malampaya are well within the Philippines' EEZ. However, China's 9-dashed lines enclose entirely the Reed Bank and encroach partly on Malampaya.

It is obvious that China will use the three air and naval bases in its artificial islands to prevent Philippine ships and planes from re-supplying Philippine-occupied islands in the Spratlys, forcing the Philippines to abandon its occupied islands. Already, Chinese coast guard vessels are preventing medium-sized Philippine ships from re-supplying the BRP Sierra Madre, the dilapidated Philippine landing ship beached in Ayungin Shoal, just 20 NM from Mischief Reef. Only the Philippines' use of small watercrafts enables the re-supply to the BRP Sierra Madre, which is manned by about a dozen Philippine marine soldiers. The Philippines' small watercrafts can navigate the shallow waters of Ayungin Shoal while China's large coast guard vessels cannot.

With the anticipated installation by China of military facilities and war materials in its three air and naval bases in the Spratlys, expected to be completed before the end of 2016, China will begin to aggressively enforce its 9-dashed lines claim over the South China Sea. Under this claim, China asserts sovereignty not only to all the islands, rocks and reefs in the Spratlys, but also to 85.7% of the South China Sea, comprising all the waters, fisheries, mineral resources, seabed and submarine areas enclosed by the 9-dashed lines. Under this claim, the Philippines will lose 381,000 square kilometers^[6] of its EEZ in the West Philippine Sea, a maritime space larger than the total Philippine land area of 300,000 square kilometers. China's 9-dashed lines claim encroaches on all the traditional fishing grounds of Filipino fishermen in the South China Sea: Scarborough Shoal, Macclesfield Bank and the Spratlys.

The Philippines, acting by itself, cannot hope to deter militarily China from enforcing its 9-dashed lines claim in the West Philippine Sea. The Philippines cannot acquire war materials like anti-ship and anti-aircraft missiles off the shelf. The operation of anti-ship missiles requires communications with airborne radar or satellite guidance systems. With the completion of China's air and naval bases before the end of 2016, the Philippines has no time to acquire, install and operate an anti-ship missile system on its own. Military and security analysts are unanimous that there is only one power on earth that can deter militarily China from enforcing its 9-dashed lines claim, and that power is the United States. This is why the MDT is utterly crucial to the Philippines' defense of its EEZ in the West Philippine Sea.

Of course, the United States has repeatedly stated that the MDT does not cover the disputed islands, rocks and reefs in the South China Sea. We understand this because at the time the MDT was signed the Philippine territory recognized by the United States did not include the Kalayaan Island Group in the Spratlys. However, the MDT provides that an armed attack on "public vessels or aircraft" (military or coast guard ship or aircraft) of either the United States or the Philippines in the Pacific area is one of the grounds for a party to invoke mutual defense under the MDT.^[7] The United States has officially clarified that the Pacific area includes the South China Sea.^[8]

If China's navy ships attack a Philippine military ship re-supplying Philippine-occupied islands in the Spratlys, that will be covered by the MDT. However, unless the U.S. and the Philippines have prepositioned anti-ship missiles in Palawan, there will be no deterrence to China, and no swift response from U.S. and Philippine forces. The absence of any deterrence will likely invite Chinese harassment, or even armed attack, on Philippine re-supply ships. That will lead to the loss of all Philippine-occupied islands in the Spratlys, as well as the loss of the gas-rich Reed Bank.

The prepositioning of war materials is a necessary and essential element to achieve the purpose of the MDT. Article II of the MDT expressly provides:

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.

(Emphasis supplied)

The prepositioning of war materials is the very essence of the phrase to "maintain and develop (the Parties') individual and collective capacity to resist armed attack." Without the prepositioning of war materials, a Party to the MDT cannot maintain and develop the capacity to resist armed attack. Without the prepositioning of war materials, a Party is simply and totally unprepared for armed attack.

The 1987 Constitution defines the "national territory" to include not only islands or rocks above water at high tide but also the seabed, subsoil and other submarine areas "over which the Philippines has sovereignty or jurisdiction." Article 1 of the 1987 Constitution provides:

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)

Thus, the Philippine "national territory" refers to areas over which the Philippines has "sovereignty or jurisdiction." The Constitution mandates: "The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."^[9]

Under both customary international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the Philippines has "sovereign rights" and "jurisdiction"^[10] to exploit exclusively all the living and non-living resources within its EEZ. Under the UNCLOS, the Philippines has the sovereign rights to exploit exclusively the mineral resources within its ECS.^[11] Under the UNCLOS, the Philippines also has sole "jurisdiction" to create artificial islands or install structures within its EEZ^[12] and ECS.^[13]

In short, under international law and in particular under the UNCLOS, the Philippines has jurisdiction over its EEZ and ECS. Thus, under domestic law, the Philippines' EEZ and ECS form part of Philippine "national territory" since the Constitution defines "national territory" to include areas over which the Philippines has "jurisdiction," a term which means less than sovereignty. However, under international law, the Philippine "national territory" refers to the areas over which the Philippines has sovereignty, referring to the Philippines' land territory, archipelagic waters and territorial sea, excluding areas over which the Philippines exercises only jurisdiction like its EEZ and ECS.

China has already invaded repeatedly Philippine "national territory" in two separate areas, one in the Kalayaan Island Group in the Spratlys and the other in Scarborough Shoal. When China seized in 1988 Subi Reef, a submerged area within the Philippines' ECS and beyond the territorial sea of any high tide feature,^[14] China invaded Philippine national territory as defined in the Constitution. When China seized in 1995 Mischief Reef, a submerged area within the Philippines' EEZ and beyond the territorial sea of any high tide feature,^[15] China invaded Philippine national territory as defined in the Constitution. When China seized in 2012 Scarborough Shoal, a rock above water at high tide and constituting land territory under international law, China invaded Philippine national territory as defined in the Constitution and as understood in international law. Republic Act No. 9522, amending the Philippine Baselines Law, expressly declares that Scarborough Shoal is part of Philippine territory over which the Philippines exercises "sovereignty and jurisdiction."^[16]

After China's seizure of Scarborough Shoal in 2012, the Philippines finally woke up and summoned the political will to address the serial and creeping Chinese invasion of Philippine national territory. Thus, the EDCA was born, to give much needed teeth to the MDT as a deterrent to further Chinese aggression in the West Philippine Sea. Without the EDCA, the MDT remains a toothless paper tiger. With the EDCA, the MDT acquires a real and ready firepower to deter any armed aggression against Philippine public vessels or aircrafts operating in the West Philippine Sea.

With the EDCA, China will think twice before attacking Philippine military re-supply ships to Philippine-occupied islands in the Spratlys. With the EDCA, the Philippines will have a fighting chance to hold on to Philippine-occupied islands in the Spratlys. With the EDCA, China will think twice before attacking Philippine navy and coast guard vessels patrolling the West Philippine Sea. This will give the Philippines a fighting chance to ward off China's impending enforcement of its 9-dashed lines as China's "national boundaries" as shown in its 2013 official vertical map.^[17]

The number and sites of the "agreed locations" to place the prepositioned war materials must necessarily remain numerous and anonymous. The "agreed locations" must be numerous enough to survive repeated or surprise armed attacks. There must not only be redundant "agreed locations" but also dummy "agreed locations" to mislead the enemy. The sites of many of the "agreed locations" cannot be disclosed publicly because that will give the enemy the fixed coordinates of the "agreed locations," making them easy targets of long-range enemy cruise missiles. The number and sites of the "agreed locations" are matters best left to the sound discretion of the Executive, who is the implementing authority of the MDT for the Philippines.

The implementation of the MDT is a purely Executive function since the Senate has already ratified the MDT. The implementation of the MDT is also part of the purely Executive function of the President as Commander-in-Chief of the Armed Forces. As executor and "chief architect"^[18] of the country's relations with foreign countries, including our treaty ally the United States, the President is constitutionally vested with ample discretion in the implementation of the MDT. EDCA, being essentially and entirely an implementation of the MDT, is within the sole authority of the President to enter into as an executive agreement with the U.S.

Article VIII of the MDT provides: "This Treaty shall remain in force indefinitely. Either party may terminate it one year after notice is given to the other Party." Neither the Philippines nor the United States has terminated the MDT. On the contrary, the 1998 Visiting Forces Agreement between the Philippines and the United States, which the Philippine Senate has ratified, expressly states that the parties are "[reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951." Thus, the continued validity and relevance of the MDT cannot be denied.

Moreover, the Senate ratification of the MDT complies with the requirement of Section 25, Article XVIII^[19] of the 1987 Constitution that any agreement allowing foreign military facilities in the Philippines, like the prepositioning of U.S. war materials, must be embodied in a treaty and ratified by two-thirds vote^[20] of the Senate. That treaty is the MDT which the Philippine Senate ratified by two-thirds vote on 12 May 1952^[21] and which the U.S. Senate ratified on 20 March 1952.^[22]

In summary, the EDCA is absolutely necessary and essential to implement the purpose of the MDT, which on the part of the Philippines, given the existing situation in the West Philippine Sea, is to deter or repel any armed attack on Philippine territory or on any Philippine public vessel or aircraft operating in the West Philippine Sea. To hold that the EDCA cannot take effect without Senate ratification is to render the MDT, our sole mutual self-defense treaty, totally inutile to meet the grave, even existentialist,^[23] national security threat that the Philippines is now facing in the West Philippine Sea.

China has already invaded several geologic features comprising part of Philippine "national territory" as defined in the Constitution. The territorial integrity of the Philippines has been violated openly and repeatedly. The President, as Commander-in-Chief of the Armed Forces, "chief architect" of foreign policy and implementer of the MDT, has decided on the urgent need to fortify Philippine military defenses by prepositioning war materials of our treaty ally on Philippine soil. This Court should not erect roadblocks to the President's implementation of the MDT, particularly since time is of the essence and the President's act of entering into the EDCA on his own does not violate any provision of the Constitution.

A final word. The EDCA does not detract from the legal arbitration case that the Philippines has filed against China under UNCLOS. The EDCA brings into the Philippine strategy the element of credible self-defense. Having refused to participate in the legal arbitration despite being obligated to do so under UNCLOS, China is now using brute force to assert its claim to almost the entire South China Sea. Given this situation, the proper equation in defending the Philippines' maritime zones in the West Philippine Sea is "legal right plus credible self-defense equals might."

Accordingly, I vote to DISMISS the petitions on the ground that the EDCA merely implements, and in fact is absolutely necessary and essential to the implementation of, the MDT, an existing treaty that has been ratified by the Senate.

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^[1] The Philippine Senate ratified the MDT on 12 May 1952 under Senate Resolution No. 84.

^[2] Article 31 of the 1969 Vienna Convention on the Law of Treaties (Vienna Convention) provides:

Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

xxx- (Emphasis supplied)

The Philippines acceded to the Vienna Convention on 15 November 1972.

^[3] Article 32 of the 1969 Vienna Convention on the Law of Treaties provides:

Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. (Emphasis supplied)

^[4] See Administrative Order No. 29, 5 September 2012.

^[5] A 3,000-meter airstrip is long enough for any military aircraft of China to land and take off. A Boeing 747 airliner, or a B52 bomber, can easily land and take off on a 3,000-meter airstrip.

^[6] Final Transcript Day I - Merits Hearing, page 58, line 11, Philippines-China Arbitration, http://www.pcacases.com/web/sendAttach/15487.

^[7] Article IV of the MDT provides: "Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes, x x x."

^[8] Letter of U.S. Secretary of State Cyrus Vance to Philippine Secretary of Foreign Affairs Carlos P. Romulo dated 6 January 1979; Letter of U.S. Ambassador to the Philippines Thomas C. Hubbard to Foreign Secretary Domingo L. Siazon dated 24 May 1999.

^[9] Section 2, Article XII ofthel987 Constitution. Emphasis supplied.

^[10] Article 56 of UNCLOS provides:

Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

x x x x (Emphasis supplied)

^[11] Article 77 of the UNCLOS provides:

Article 77
Rights of the coastal State over the continental shelf

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. (Emphasis supplied)

^[12] Article 60 of the UNCLOS provides:

Article 60
Artificial islands, installations and structures in the exclusive economic zone

1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:

(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.

x x x x (Emphasis supplied)

^[13] Article 80 of the UNCLOS provides:

Article 80
Artificial islands, installations and structures on the continental shelf
Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.

^[14] Final Transcript Day 2 - Merits Hearing, page 23, lines 7, 8 and 9, Philippines-China Arbitration, http://www.pcacases.com/web/sendAttach/1548.

^[15] Id.

^[16] Section 2 of RA No. 9522 provides: "The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and

b) Bajo de Masinloc, also known as Scarborough Shoal." (Emphasis supplied)

In its Note Verbale of 7 June 2013 to China, the Philippines stated it "strongly objects to the indication that the nine-dash lines are China's national boundaries in the West Philippine Sea/South China Sea."
(Emphasis supplied)

^[18] Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303 (2005).

^[19] Section 25, Article XVIII of the 1987 Constitution provides: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." (Emphasis supplied)

^[20] Section 21, Article VII of the 1987 Constitution provides: "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."
(Emphasis supplied)

^[21] The 1935 Constitution, under which the MDT was ratified, also required ratification of treaties by two-thirds vote of the Senate. Section 10(7), Article VII of the 1935 Constitution provides: "The President shall have the power, with the concurrence of two thirds of all the Members of the Senate, to make treaties, and with the consent of the Commission on Appointments, he shall appoint ambassadors, other public ministers; and consuls. He shall receive ambassadors and other public ministers duly accredited to the Government of the Philippines." (Emphasis supplied)

^[22] See footnote 7, Nicolas v. Romulo, 598 Phil. 262 (2009).

^[23] China's successful control of the South China Sea will force the Philippines to share a 1,300-kilometer sea border with China, from Balabac Island in Palawan to Yamin Island in Batanes, very close to the Philippine coastline facing the South China Sea. This will bring the Philippines into China's orbit, with the Philippines adhering to China's positions on matters involving foreign policy.

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CONCURRING AND DISSENTING OPINION

LEONARDO-DE CASTRO, J..:

"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." xxx.^[1]

I concur with the disposition of the procedural issues but not with the arguments and conclusions reached as to the substantive issues.

The focus of the present controversy, as mentioned by the Honorable Chief Justice is the application of Section 25, Article XVIII of the Constitution which reads:

ARTICLE XVIII
TRANSITORY PROVISIONS

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

Section 25, Article XVIII bans foreign military bases, troops, or facilities in Philippine territory, unless the following requisites are complied with: (1) the presence of foreign military bases, troops, or facilities should be allowed by a treaty; (2) the treaty must be duly concurred in by the Philippine Senate and, when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.^[2]

Couched in negative terms, Section 25, Article XVIII embodies a prohibition: "foreign military bases, troops, or facilities shall not be allowed in the Philippines," unless the requisites in the said section are met.

In BAYAN v. Zamora,^[3] the Court held that Section 25, Article XVIII covers three different situations: a treaty allowing the presence within the Philippines of (a) foreign military bases, or (b) foreign military troops, or (c) foreign military facilities, such that a treaty that involves any of these three standing alone falls within the coverage of the said provision.

BAYAN v. Zamora likewise expounded on the coverage of the two provisions of the Constitution - Section 21, Article VII and Section 25, Article XVIII - which both require Senate concurrence in treaties and international agreements. The Court stated:

Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.

x x x x

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient" and "permanent." Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made by law the Court should not distinguish — Ubi lex non distinguit nee nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration, such that, the provision contemplates three different situations — a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities — any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:

MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities or could the treaty entered into cover only one or two?

FR. BERN AS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the, government can enter into a treaty covering only troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything.^[4] (Citations omitted.)

Furthermore, the wording of Section 25, Article XVIII also provides an indubitable implication: foreign military bases, troops and facilities have ceased to be allowed in the Philippines after the expiration in 1991 of the Military Bases Agreement; thereafter, the same can only be re-allowed upon the satisfaction of all the three requirements set forth in the Section 25, Article XVIII.

The legal consequence of the above provision with respect to the Military Bases Agreement (March 14, 1947), the Mutual Defense Treaty (August 30, 1951), the Visiting Forces Agreement (February 10, 1998), and the Enhanced Defense Cooperation Agreement ([EDCA] April 28, 2014) can be appreciated by an examination of the respective rights and obligations of the parties in these agreements.

Effect of Section 25, Article XVIII of
the Constitution on the Military Bases
Agreement, the Mutual Defense Treaty,
the Visitins Forces Agreement, and the
Enhanced Defense Cooperation Agreement

On July 4, 1946, the United States recognized the independence of the Republic of the Philippines, thereby apparently relinquishing any claim of sovereignty thereto. However, on March 14, 1947, the Philippines and the United States entered into a Military Bases Agreement (MBA) which granted to the United States government the right to retain^[5] the use of the bases listed in the Annexes of said agreement.^[6] Within said bases, the United States was granted "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."^[7] The term of the original agreement was "for a period of ninety-nine years subject to extension thereafter as agreed by the two Governments."^[8] In 1966, the parties entered into the Ramos-Rusk Agreement, which reduced the term of the Military Bases Agreement to 25 years from 1966, or until 1991.

On August 30, 1951, the Philippines and the United States entered into the Mutual Defense Treaty (MDT), whereby the parties recognized that "an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional process."^[9] The treaty provided that it "shall remain in force indefinitely," although either party "may terminate it one year after notice has been given to the other Party."^[10] It bears pointing out that there is no explicit provision in the MDT which authorized the presence in the Philippines of military bases, troops, or facilities of the United States.

In 1986, during the early stages of the deliberations of the Constitutional Commission, and in view of the impending expiration of the MBA in 1991, the members of the Commission expressed their concern that the continued presence of foreign military bases in the country would amount to a derogation of national sovereignty. The pertinent portion of the deliberations leading to the adoption of the present Section 25, Article XVIII is quoted as follows:

FR. BERNAS. My question is: Is it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?

MR. AZCUNA. It is difficult to imagine a situation based on existing facts where it would not. However, in the abstract, it is possible that it would not be that much of a derogation. I have in mind, Madam President, the argument that has been presented. Is that the reason why there are U.S. bases in England, in Spain and in Turkey? And it is not being claimed that their sovereignty is being derogated. Our situation is different from theirs because we did not lease or rent these bases to the U.S. The U.S. retained them from us as a colonial power.

FR. BERNAS. So, the second sentence, Madam President, has specific reference to what obtains now.

MR. AZCUNA. Yes. It is really determined by the present

situation.

FR. BERNAS. Does the first sentence tolerate a situation radically different from what obtains now? In other words, if we understand sovereignty as auto-limitation, as a people's power to give up certain goods in order to obtain something which may be more valuable, would it be possible under this first sentence for the nation to negotiate some kind of a treaty agreement that would not derogate against sovereignty?

MR. AZCUNA. Yes. For example, Madam President, if it is negotiated on a basis of true sovereign equality, such as a mutual ASEAN defense agreement wherein an ASEAN force is created and this ASEAN force is a foreign military force and may have a basis in the member ASEAN countries, this kind of a situation, I think, would not derogate from sovereignty.

MR. NOLLEDO. Madam President, may I be permitted to make a comment on that beautiful question. I think there will be no derogation of sovereignty if the existence of the military bases as stated by Commissioner Azcuna is on the basis of a treaty which was not only ratified by the appropriate body, like the Congress, but also by the people.

I would like also to refer to the situation in Turkey where the Turkish government has control over the bases in Turkey, where the jurisdiction of Turkey is not impaired in anyway, and Turkey retains the right to terminate the treaty under circumstances determined by the host government. I think under such circumstances, the existence of the military bases may not be considered a derogation of sovereignty, Madam President.

FR. BERN AS. Let me be concrete, Madam President, in our circumstances. Suppose they were to have this situation where our government were to negotiate a treaty with the United States, and then the two executive departments in the ordinary course of negotiation come to an agreement. As our Constitution is taking shape now, if this is to be a treaty at all, it will have to be submitted to our Senate for its ratification. Suppose, therefore, that what was agreed upon between the United States and the executive department of the Philippines is submitted and ratified by the Senate, then it is further submitted to the people for its ratification and subsequently, we ask the United States: "Complete the process by accepting it as a treaty through ratification by your Senate as the United States Constitution requires," would such an arrangement be in derogation of sovereignty?

MR. NOLLEDO. Under the circumstances the Commissioner just mentioned, Madam President, on the basis of the provision of Section 1 that "sovereignty resides in the Filipino people," then we would not consider that a derogation of our sovereignty on the basis and expectation that there was a plebiscite.^[11] (Emphasis supplied.)

As a safeguard against the derogation of national sovereignty, the present form of Section 25, Article XVIII was finalized by the Commission and ratified by the Filipino people in 1987.

On September 16, 1991, the Senate rejected the proposed Treaty of Friendship, Cooperation and Security, which would have extended the presence of US military bases in the Philippines. Nevertheless, the defense and security relationship between the Philippines and the United States continued in accordance with the MDT.^[12]

Upon the expiration of the MBA in 1991, Section 25, Article XVIII came into effect. The presence of foreign military bases, troops or facilities in the country can only be allowed upon the satisfaction of all three requirements set forth in Section 25, Article XVIII.

On February 10, 1998, the Philippines and the United States entered into the Visitng Forces Agreement (VFA), which required the Philippines to facilitate the admission of United States personnel,^[13] a term defined in the same treaty as "United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government."^[14]

United States Government equipment, materials, supplies, and other property imported into the Philippines in connection with activities to which the VFA applies, while not expressly stated to be allowed into the Philippines by the provisions of the VFA, were nevertheless declared to be free from Philippine duties, taxes and similar charges. Title thereto was also declared to remain with the United States.^[15]

The VFA expressly allowed the importation into the Philippines of reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel.^[16] The VFA likewise expressly allowed the entry into the Philippines of (1) aircraft operated by or for the United States armed forces upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements; and (2) vessels operated by or for the United States armed forces upon approval of the Government of the Philippines, in accordance with international custom and practice and such agreed implementing arrangements as necessary.^[17]

The VFA also provided for the jurisdiction over criminal and disciplinary cases over United States personnel with respect to offences committed within the Philippines.^[18]

The VFA further stated that the same shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.^[19]

Subsequently, the constitutionality of the VFA was questioned before the Court in the aforementioned October 10, 2000 case of BAYAN v. Zamora,^[20] and again in the February 11, 2009 case of Nicolas v. Romulo.^[21] In both cases, the Court held that Section 25, Article XVIII of the Constitution is applicable, but the requirements thereof were nevertheless complied with. In Nicolas, however, the implementing Romulo-Kenney Agreements of December 19 and 22, 2006 concerning the custody of Lance Corporal Daniel J. Smith, who was charged with the crime of rape, were declared not in accordance with the VFA.

Thereafter, on April 28, 2014, the governments of the Philippines and the United States entered into the assailed EDCA.

The EDCA
Under the EDCA, the Philippines by mutual agreement with the United States, shall provide the United States forces the access and use of portions of Philippine territory. United States forces are "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." These portions of Philippine territory that will be made available to the US are called "Agreed Locations," which is a new concept defined under Article 11(4) of the EDCA as:

4. "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that the United States forces,^[22] 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 further be described in implementing arrangements. (Emphasis supplied.)

Aside from the right to access and to use the Agreed Locations, the United States may undertake the following types of activities within the Agreed Locations: security cooperation exercises; joint and combined training activities; humanitarian and disaster relief activities; and such other activities that as may be agreed upon by the Parties."^[23] Article 111(1) of the EDCA further states in detail the activities that the United States may conduct inside the Agreed Locations:

1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircrafts operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the Parties may agree. (Emphasis supplied.)

The United States may access and use the Agreed Locations without any obligation on its part to pay any rent or similar costs.^[24]

In addition to the right to access and to use the Agreed Locations and to conduct various activities therein, the United States, upon request to the Philippines' Designated Authorities,^[25] can further temporarily access public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields).^[26]

The United States is also granted operational control of Agreed Locations to do construction activities, make alterations or improvements of the Agreed Locations.^[27] All buildings, non-relocatable structures, and assemblies affixed to the land in the Agreed Locations, including [those] altered or improved by United States forces, remain the property of the Philippines. Permanent buildings constructed by the United States forces become the property of the Philippines, once constructed, but shall be used by the United States forces until no longer required.^[28]

Incidental to the access and use of the Agreed Locations, the US is granted the use of water, electricity and other public utilities,^[29] as well as the use of the radio spectrum in relation to the operation of its own telecommunications system.^[30]

As to the management of the Agreed Locations, the United States forces are authorized to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense, including taking appropriate measures to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.^[31]

The United States is authorized to preposition and store defense equipment, supplies, and materiel ("prepositioned materiel"), including but not limited to, humanitarian assistance and disaster relief equipment, supplies and material, at Agreed Locations.^[32] The prepositioned materiel of the United States forces shall be for the exclusive use of United States forces, and full title to all such.equipment, supplies and materiel remains with the United States.^[33] United States forces and United States contractors^[34] 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.^[35] The United States forces and United States contractors shall retain title to all equipment, materiel, supplies, relocatable structures, and other movable property that have been imported into or acquired within the territory of the Philippines by or on behalf of United States forces.^[36]

Considering the presence of US armed forces: military personnel, vehicles, vessels, and aircrafts and other defensive equipment, supplies, and materiel in the Philippines, for obvious military purposes and with the obvious intention of assigning or stationing them within the Agreed Locations, said Agreed Locations, for all intents and purposes, are considered military bases and fall squarely under the definition of a military base under Section 2, Presidential Decree No. 1227, otherwise known as "Punishing Unlawful Entry into Any Military Base in the Philippines," which states:

SECTION 2. The term "military 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. (Emphasis supplied.)

In the same vein, Article XXVI of the 1947 RP-US Military Bases Agreement (MBA) defined a military base as "areas named in Annex A and Annex B and such additional areas as may be acquired for military purposes pursuant to the terms of this Agreement."^[37]

Considering further that the United States armed forces stationed in the Philippines, as well as their relocatable structures, equipment and materiel are owned, maintained, controlled, and operated by the United States within Philippine territory, these Agreed Locations are clearly overseas military bases of the US with RP as its host country.

The EDCA provided for an initial term of ten years, which thereafter shall continue in force automatically, unless terminated by either party by giving one year's written notice through diplomatic channels of its intention to terminate the agreement.^[38]

Interestingly, the EDCA has similar provisions found in the 1947 MBA:

Military Bases Agreement   (March 14,1947)	Enhanced Defense Cooperation Agreement (April 28, 2014)
Article III: DESCRIPTION OF RIGHTS 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.	Article III: AGREED LOCATIONS 4. The Philippines hereby grants the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations, x x x. Article VI: SECURITY 3. United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense x x x.
Article III: DESCRIPTION OF RIGHTS       2. Such rights, power and authority shall include, inter alia, the right, power and authority: (a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases; (b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;	Article III: AGREED LOCATIONS 4. The Philippines hereby grants the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations, x x x.
Article III: DESCRIPTION OF RIGHTS 2. Such rights, power and authority shall include, inter alia, the right, power and authority : x x x x (c) 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 waterborne craft, aircraft and other vehicles on water, in the air or on land comprising or in the vicinity of the bases;	Article III: AGREED LOCATIONS 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. Article IV: EQUIPMENT, SUPPLIES, AND MATERIEL 4. United States forces and United States 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.
Article III: DESCRIPTION OF RIGHTS 2. Such rights, power and authority shall include, inter alia, the right, power and authority: x x x x (e) to construct, install, maintain, and employ on any base any type, of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.	Article III: AGREED LOCATIONS 1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by and for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deplovine forces and materiel; and such other activities as the Parties may agree. Article IV: EQUIPMENT, SUPPLIES, AND MATERIEL 1. The Philippines hereby authorizes the United States forces, x x x to preposition and store defense equipment, supplies, and materiel ("prepositioned materiel") x x x. x x x x 3. The prepositioned materiel of the United States forces shall be for the exclusive use of the United States forces, and full title to all such equipment, supplies, and materiel remains with the United States. United States forces shall have control over the access to and disposition of such prepositioned materiel and shall have the unencumbered right to remove such prepositioned materiel at any time from the territory of the Philippines. (Emphases supplied.)

The EDCA is not a mere
implementing agreement of
the MPT or the VFA

As can be seen in the above table of comparison, these EDCA provisions establishes military areas similar to that in the Military Bases Agreement, and for that reason alone, the EDCA is far greater in scope than both the Mutual Defense Treaty and the Visiting Forces Agreement. The EDCA is not a mere implementing agreement of either the MDT or the VFA.

The EDCA is an international agreement that allows the presence in the Philippines of foreign military bases, troops and facilities, and thus requires that the three requisites under Section 25, Article XVIII be complied with. The EDCA must be submitted to the Senate for concurrence.

The majority opinion posits, inter alia, that the President may enter into an executive agreement on foreign military bases, troops, or facilities if: (a) it "is not the principal agreement that first allowed their entry or presence in the Philippines," or (b) it merely aims to implement an existing law or treaty. Likewise, the President alone had the choice to enter into the EDCA by way of an executive agreement or a treaty. Also, the majority suggests that executive agreements may cover the matter of foreign military forces if it involves detail adjustments of previously existing international agreements.

The above arguments fail to consider that Section 25, Article XVIII of the Constitution covers three distinct and mutually independent situations: the presence of foreign military bases or troops or facilities. The grant of entry to foreign military troops does not necessarily allow the establishment of military bases or facilities.^[39]

Generally, the parties to an international agreement are given the freedom to choose the form of their agreement.

International agreements may be in the form of: (1) treaties, which require legislative concurrence after executive ratification; or (2) executive agreements, which are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties. Under Article 2 of the Vienna Convention on the Law of Treaties, a treaty is defined as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.^[40]

In the 1961 case of Commissioner of Customs v. Eastern Sea Trading,^[41] the Court had occasion to state that "[international agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements."

In the more recent case of Bayan Muna v. Romulo,^[42] the Court expounded on the above pronouncement in this wise:

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.

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. x x x 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:

x x x 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, x x x. 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. x x x. (Citations omitted.)

However, it must be emphasized that while in the above case, the Court called attention to "one type of executive agreement which is a treaty-authorized or a treaty-implementing executive agreement, which necessarily would cover the same matter subject of the underlying treaty," still, the Court cited the special situation covered by Section 25, Article XVIII of the Constitution which explicitly prescribes the form of the international agreement. The Court stated:

But over and above the foregoing considerations is the fact that — save for the situation and matters contemplated in See. 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.^[43] (Emphasis supplied, citation omitted.)

Clearly, the Court had since ruled that when the situation and matters contemplated in Sec. 25, Article XVIII obtains, i.e., when the subject matter of an international agreement involves the presence of foreign military bases, troops or facilities, a treaty is required and that the same must be submitted to the Senate for the latter's concurrence. In BAY AN v. Zamora,^[44] the Court held that Section 25, Article XVIII, like Section 21, Article VII, embodies a phrase in the negative, i.e., "shall not be allowed" and therefore, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective.

What the majority did is to carve out exceptions to Section 25, Article XVIII when none is called for.

As previously discussed, the language of Section 25, Article XVIII is clear and unambiguous. The cardinal rule is that the plain, clear and unambiguous language of the Constitution should be construed as such and should not be given a construction that changes its meaning. The Court also enunciated in Chavez v. Judicial and Bar Council that:

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of government are established, limited and defined and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. The Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the principles and the framework upon which government and society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the branch tasked to interpret it. (Emphasis supplied; citation omitted.)

The majority opinion posits that the EDCA is consistent with the content, purpose and framework of the MDT and the VFA. As such, the majority argues that the EDCA may be in the form of an executive agreement as it merely implements the provisions of the MDT and the VFA.

I disagree. Compared closely with the provisions of the MDT and the VFA, the EDCA transcends in scope and substance the subject matters covered by the aforementioned treaties. Otherwise stated, the EDCA is an entirely new agreement unto itself.

The MDT in relation to the EDCA

We noted in Lim v. Executive Secretary^[47] that the MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. The aim of the treaty is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts.

As explicitly pronounced in its declaration of policies, the MDT was entered into between the Philippines and the United States in order to actualize their desire "to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack"^[48] and "further to strengthen their present efforts to collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific area."^[49]

Under Article II of the MDT, the parties undertook "separately and jointly by self-help and mutual aid" to "maintain and develop their individual and collective capacity to resist armed attack."^[50] Article III thereof states that the parties to the treaty shall "consult together from time to time regarding the implementation of [the] 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."^[51]

Moreover, Article IV states that the individual parties to the treaty "recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional process."^[52] This provision highlights the need for each party to follow their respective constitutional processes and, therefore, the MDT is not a self-executing agreement. It follows that if the Philippines aims to implement the MDT in the manner that the majority opinion suggests, such implementation must adhere to the mandate of Section 25, Article XVIII of the Constitution.

Also, under the above article, the parties are thereafter obligated to immediately report to the Security Council of the United Nations the occurrence of any such armed attack and all the measures taken as result thereof. Said measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.^[53] Article V of the treaty explained that "an armed attack on either of the Parties is deemed to include 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."^[54]

Under Article VIII of the treaty, the parties agreed that the treaty shall remain in force indefinitely and that either party may terminate it one year after notice has been given to the other party.^[55]

Clear from the foregoing provisions is that the thrust of the MDT pertains to the furtherance of the avowed purpose of the parties thereto of maintaining and developing their individual and collective capacity to resist external armed attack only in the metropolitan territory of either party or in their island territories in the Pacific Ocean. Accordingly, the territories of the parties other than those mentioned are not covered by the MDT.

Conspicuously absent from the MDT are specific provisions regarding the presence in Philippine territory - whether permanent or temporary - of foreign military bases, troops, or facilities. The MDT did not contemplate the presence of foreign military bases, troops or facilities in our country in view of the fact that it was already expressly covered by the MBA that was earlier entered into by the Philippines and the United States in 1947. Moreover, the MDT contains no delegation of power to the President to enter into an agreement relative to the establishment of foreign military bases, troops, or facilities in our country. The MDT cannot also be treated as allowing an exception to the requirements of Section 25, Article XVIII of the Constitution, which took effect in 1987. As explained above, the reference to constitutional processes of either party in the MDT renders it obligatory that the Philippines follow Section 25, Article XVIII of the Constitution.

Indeed, the MDT covers defensive measures to counter an armed attack against either of the parties' territories or armed forces but there is nothing in the MDT that specifically authorizes the presence, whether temporary or permanent, of a party's bases, troops, or facilities in the other party's territory even during peace time or in mere anticipation of an armed attack.

On the other hand, the very clear-cut focal point of the EDCA is the authority granted to the United States forces and contractors to have unimpeded access to so-called Agreed Locations - which can be anywhere in the Philippines - and to build there military facilities and use the same to undertake various military activities. The very wording of the EDCA shows that it undoubtedly deals with the presence of foreign military bases, troops, and facilities in Philippine territory.

Thus, contrary to the posturing of the majority, the presence of foreign military bases, troops, or facilities provided under the EDCA cannot be traced to the MDT. Moreover, the general provisions of the MDT cannot prevail over the categorical and specific provision of Section 25, Article XVIII of the Constitution.

As will be further highlighted in the succeeding discussion, the EDCA creates new rights, privileges and obligations between the parties thereto.

The VFA in relation to the EDCA

With respect to the VFA, the EDCA likewise surpasses the provisions of the said former treaty.

The VFA primarily deals with the subject of allowing elements of the United States armed forces to visit the Philippines from time to time for the purpose of conducting activities, approved by the Philippine government, in line with the promotion and protection of the common security interests of both countries.

In the case of BAYAN v. Zamora,^[56] the Court ruled that the VFA "defines the treatment of United States troops and personnel visiting the Philippines," "provides for the guidelines to govern such visits of military personnel," and "defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies."

We likewise reiterated in Lim v. Executive Secretary,^[57] that:

The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.

To a certain degree, the VFA is already an amplification of the MDT in that it allows the presence of visiting foreign troops for cooperative activities in peace time. Thus, in line with the mandate of Section 25, Article XVIII of the Constitution, the VFA is embodied in a treaty concurred in by the Senate.

In particular, the coverage of the VFA is as follows:

1)	The admission of United States personnel and their departure from Philippines in connection with activities covered by the agreement, and the grant of exemption to United States personnel from passport and visa regulations upon entering and departing from the Philippines;[58]
2)	The validity of the driver's license or permit issued by the United States, thus giving United States personnel the authority to operate military or official vehicles within the Philippines;[59]
3)	The rights of the Philippines and the United States in matters of criminal jurisdiction over United States personnel who commit offenses within the Philippine territory and punishable under Philippine laws;[60]
4)	The importation and exportation of equipment, materials, supplies and other property, by United States personnel free from Philippine duties, taxes and similar charges;[61]
5)	The movement of United States aircrafts, vessels and vehicles within Philippine territory;[62] and
6)	The duration and termination of the agreement.[63]

In contrast, the EDCA specifically deals with the following matters:

1)	The authority of the United States forces to access facilities and areas, termed as "Agreed Locations," and the activities that may be allowed therein;[64]
2)	The grant to the United States of operational control of Agreed Locations to do construction activities and make alterations or improvements thereon;[65]
3)	The conditional access to the Agreed Locations of the Philippine Designated Authority and its authorized representative;[66]
4)	The storage and prepositioning of defense equipment, supplies and materiel, as well as the unimpeded access granted to the United States contractors to the Agreed Locations in matters regarding the prepositioning, storage, delivery, management, inspection, use, maintenance and removal of the defense equipment, supplies, and materiel; and the prohibition that the preposition materiel shall not include nuclear weapons;[67]
5)	a) The ownership of the Agreed Locations by the Philippines, b) the ownership of the equipment, materiel, supplies, relocatable structures and other moveable property imported or acquired by the United States, c) the ownership and use of the buildings, non-relocatable structures, and assemblies affixed to the land inside the Agreed Locations;[68]
6)	The cooperation between the parties in taking measures to ensure protection, safety and security of United States forces, contractors and information in Philippine territory; the primary responsibility of the Philippines to secure the Agreed Locations, and the right of the United States to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense;[69]
7)	The use of water, electricity and other public utilities;[70]
8)	The use of the radio spectrum in connection with the operation of a telecommunications system by the United States;[71]
9)	The authority granted to the of the United States to contract for any materiel, supplies, equipment, and services (including construction) to be furnished or undertaken inside Philippine territory;[72]
10)	The protection of the environment and human health and safety, and the observance of Philippine laws on environment and health, and the prohibition against the intentional release of hazardous waste by the United States and the containment of thereof in ease a spill occurs;[73]
11)	The need to execute implementing arrangements to address details concerning the presence of United States forces at the Agreed Locations and the functional relations between the United States forces and the AFP with respect to the Agreed Locations;[74] and
12)	The resolution of disputes arising from the EDCA through consultation between the parties.[75]

Initially, what is abundantly clear with the foregoing enumeration is that the EDCA is an entirely new creation. The provisions of the EDCA are not found in or have no corresponding provisions in the VFA. They cover entirely different subject matters and they create new and distinct rights and obligations on the part of the Philippines and the United States.

Furthermore, as to the nature of the presence of foreign military troops in this country, the VFA is explicit in its characterization that it is an agreement between the governments of the Philippines and the United States regarding the treatment of United States Armed Forces visiting the Philippines. The Preamble of the VFA likewise expressly provides that, "noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines"^[76] and "recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines"^[77] the parties to the VFA agreed to enter into the said treaty. The use of the word visit is very telling. In its ordinary usage, to visit is to "stay temporarily with (someone) or at (a place) as a guest or tourist" or to "go to see (someone or something) for a specific purpose."^[78] Thus, the word visit implies the temporariness or impermanence of the presence at a specific location.

On the other hand, under the EDCA, United States forces and United States contractors are permitted to stay in the Agreed Locations to undertake military activities therein without any clear limitation as to the duration of their stay. Moreover, they are given unimpeded access to Agreed Locations to conduct different activities that definitely were not contemplated under the VFA.

The Court's ruling in Lim v. Executive Secretary^[79] provides some insights as to the scope of activities germane to the intention of the VFA. Thus:

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game.

x x x x

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, citations omitted.)

The above discussion clearly shows that the VFA was intended for non-combat activities only.

In the instant case, the OSG averred that the entry of the United States forces into the Agreed Location is borne out of "military necessity."^[80] Military necessity means the necessity attending belligerent military operations that is held to justify all measures necessary to bring an enemy to complete submission excluding those (as cruelty, torture, poison, perfidy, wanton destruction) that are forbidden by modern laws and customs of war.^[81]

In the instant case, some of the activities that the United States forces will undertake within the Agreed Locations such as prepositioning of defense equipment, supplies and materiel, and deploying of forces and materiel are actual military measures supposedly put into place in anticipation of battle. To preposition means "to place military units, equipment, or supplies at or near the point of planned use or at a designated location to reduce reaction time, and to ensure timely support of a specific force during initial phases of an operation."^[82] On the other hand, materiel is defined as "all items necessary to equip, operate, maintain, and support military activities without distinction as to its application for administrative or combat purposes."^[83] Also, to deploy means "to place or arrange (armed forces) in battle disposition or formation or in locations appropriate for their future employment."^[84] Deployment also means "the rotation of forces into and out of an operational area."^[85]

The EDCA likewise allows the construction of permanent buildings, which the United States forces can utilize until such time that they no longer need the use thereof. The construction of permanent buildings, including the alteration or improvement by the United States of existing buildings, structures and assemblies affixed to the land, are certainly necessary not only for the accommodation of its troops, bunkering of vessels, maintenance of its vehicles, but also the creation of the proper facilities for the storage and prepositioning of its defense materiel. This grant of authority to construct new buildings and the improvement of existing buildings inside the Agreed Locations - which buildings are to be used indefinitely - further evinces the permanent nature of the stay of United States forces and contractors in this country under the EDCA. This is a far cry from the temporary visits of United States armed forces contemplated in the VFA.

Moreover, aside from agreements that the Philippines and the United States may subsequently enter into with respect to the access of the United States forces in the Agreed Locations on a "rotational basis,"^[86] and other activities that the United States may conduct therein,^[87] the EDCA also contains provisions requiring the execution of further "implementing arrangements" with regard to description of the Agreed Locations,^[88] "[funding] for construction, development, operation and maintenance costs at the Agreed Locations,"^[89] and "additional details concerning the presence of the United States forces at the Agreed Locations and the functional relations between the United States forces and the AFP with respect to Agreed Locations."^[90]

Article 11(4) of the EDCA states that the Agreed Locations shall be provided by the Philippine Government through the AFP. What is readily apparent from said article is that the AFP is given a broad discretion to enter into agreements with the United States with respect to the Agreed Locations. The grant of such discretion to the AFP is without any guideline, limitation, or standard as to the size, area, location, boundaries and even the number of Agreed Locations to be provided to the United States forces. As there is no sufficient standard in the EDCA itself, and no means to determine the limits of authority granted, the AFP can exercise unfettered power that may have grave implications on national security. The intervention of the Senate through the constitutionally ordained treaty-making process in defining the new national policy concerning United States access to Agreed Locations enunciated in the EDCA, which has never been before expressly or impliedly authorized, is imperative and indispensible for the validity and effectivity of the EDCA.

The above distinctions between the EDCA and the VFA, therefore, negate the OSG's argument that the EDCA merely involves "adjustments in detail" of the VFA. To my mind, the EDCA is the general framework for the access and use of the Agreed Locations by the United States forces and contractors rather than an implementing instrument of both the MDT and the VFA.

As stated above, Section 25, Article XVIII contemplates three different situations: a treaty concerning the allowance within the Philippines of (a) foreign military bases, (b) foreign military troops, or (c) foreign military facilities, such that a treaty that involves any of these three standing alone would fall within the coverage of the said provision. The VFA clearly contemplates only visits of foreign military troops.

The VFA, which allows the presence of the units of the United States military troops, cannot by any stretch of the imagination include any arrangement that practically allows the establishment of United States military bases or facilities in the so-called Agreed Locations under the EDCA. Thus, the EDCA goes far-beyond the arrangement contemplated by the VFA and therefore it necessarily requires Senate concurrence as mandated by Section 25, Article XVIII of the Constitution. In the same vein, the initial entry of United States troops under the VFA cannot, as postulated by the ponencia, justify a "treaty-authorized" presence under the EDCA, since the presence contemplated in the EDCA also pertains to the establishment of foreign military bases or facilities, and not merely visiting troops.

The argument that the entry of the United States bases, troops and facilities under the EDCA is already allowed in view of the "initial entry" of United States troops under the VFA glaringly ignores that the entry of visiting foreign military troops is distinct and separate from the presence or establishment of foreign military bases or facilities in the country under Section 25, Article XVIII of the Constitution.

To reiterate, the EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT. Hence, it must satisfy the requirements under Section 25, Article XVIII of the Constitution. The Senate itself issued Resolution No. 105 on November 10, 2015, whereby it expressed its "definite stand on the non-negotiable power of the Senate to decide whether a treaty will be valid and effective depending on the Senate concurrence" and resolved "that the RP-US EDCA [is a] treaty [that] requires Senate concurrence in order to be valid and effective."

Incidentally, with respect to the VFA, there is a difference of opinion whether or not the same is an implementing agreement of the MDT, as the latter does not confer authority upon the United States President (or the Philippine President) to enter into an executive agreement to implement said treaties. Still, in Nicolas v. Romulo,^[91] the Court noted that even if the VFA was treated as an implementing agreement of the MDT, the VFA was submitted to the Senate for concurrence.

By no means should this opinion be construed as one questioning the President's intention and effort to protect our national territory and security. However, in the case of Tawang Multi-purpose Cooperative v. La Trinidad Water District^[92] the Court said:

There is no "reasonable and legitimate" ground to violate the Constitution. The Constitution should never be violated by anyone. Right or wrong, the President, Congress, the Court, x x x have no choice but to follow the Constitution. Any act, however noble its intentions, is void if it violates the Constitution. This rule is basic.

In Social Justice Society, the Court held that, "In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed." In Sabio, the Court held that, "the Constitution is the highest law of the land. It is 'the basic and paramount law to which x x x all persons, including the highest officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the Constitution.'" in Bengzon v. Drilon, the Court held that, "the three branches of government must discharge their respective functions within the limits of. authority conferred by the Constitution." In Mutuc v. Commission on Elections, the Court held that, "The three departments of government in the discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to [the Constitution's] commands. Whatever limits it imposes must be observed." (Emphases supplied, citations omitted.)

A final word. While it is true that the Philippines cannot stand alone and will need friends within and beyond this region of the world, still we cannot offend our Constitution and bargain away our sovereignty.

Accordingly, I vote to grant the consolidated petitions.

---

^[1] The Schooner Exchange vs. McFaddon and Others, 3 Law. ed., 287, 293; cited in Dizon v. Commanding General of the Phil. Ryukus Command, U.S. Army, 81 Phil. 286, 292 (1948).

^[2] BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655 (2000).

^[3] Id. at 653.

^[4] Id. at 650-654.

^[5] The Court explained in Nicolas v. Romulo (598 Phil. 262, 279-280 [2009]) that: "[U]nder the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US.

x x x x

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines."

^[6] Military Bases Agreement (March 14, 1947), Article I, which provides: Article I GRANT OF BASES

1. The Government of the Republic of the Philippines (hereinafter referred to as the Philippines) grants to the Government of the United States of America (hereinafter referred to as the United States) the right to retain the use of the bases in the Philippines listed in Annex A attached hereto.

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.

3. The Philippines agrees to enter into negotiations with the United States at the latter's request, to permit the United States to expand such bases, to exchange such bases for other bases, to acquire additional bases, or relinquish rights to bases, as any of such exigencies may be required by military necessity.

4. A narrative description of the boundaries of the bases to which this Agreement relates is given in Annex A and Annex B. An exact description of the bases listed in Annex A, with metes and bounds, in conformity with the narrative descriptions, will be agreed upon between the appropriate authorities of the two Governments as soon as possible. With respect to any of the bases listed in Annex B, an exact description with metes and bounds, in conformity with the narrative description of such bases, will be agreed upon if and when such bases are acquired by the United States.

^[7] Id, Article III(l).

^[8] Id, Article XXIX.

^[9] Articles IV and V of the Mutual Defense Treaty (August 30, 1951) provides:

ARTICLE IV

Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional process.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. ARTICLE V

For the purpose of Article IV, an armed attack on either of the Parties is deemed to include 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.

^[10] Mutual Defense Treaty (August 30, 1951), Article VIII.

^[11] IV RECORD OF THE CONSTITUTIONAL COMMISSION, pp. 661-662.

^[12] BAYAN v. Zamora, supra note 2.

^[13] Visiting Forces Agreement (February 10, 1998), Article III.

^[14] Id., Article I.

^[15] Id., Article VII.

^[16] Id., Article VII.

^[17] Id., Article VIII.

^[18] Id., Article V.

^[19] Id., Article IX. Supra note 2. Supra note 5.

^[22] "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. [Enhanced Defense Cooperation Agreement, Article 11(2).]

^[23] Enhanced Defense Cooperation Agreement, Article 1(3).

^[24] Id., Article 111(3).

^[25] Id., Article 11(5) states:

5. "Designated Authorities" means, respectively, the Philippine Department of National Defense, unless the Philippines otherwise provides written notice to the United States, and the United States Department of Defense, unless the United States otherwise provides written notice to the Philippines.

^[26] Id., Article 111(2).

^[27] Id, Article 111(4).

^[28] Id., Article V(4).

^[29] Id, Article VII(l).

^[30] Id. Article VII(2).

^[31] Id, Article Vl(3).

^[32] Id., Article IV(l).

^[33] Id., Article IV(3).

^[34] Id., Article II defines United States contractors as:

3. "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.

^[35] Id., Article IV(4).

^[36] Id., Article V(3).

^[37] Annexes A and B referred to under the MBA included the following military bases in the Philippines, namely: Clark Field Air Base, Pampanga; Mariveles Military Reservation, POL Terminal and Training Area, Bataan; Camp John Hay Leave and Recreation Center, Baguio; Subic Bay, Northwest Shore Naval Base, Zambales Province, and the existing Naval reservation at Olongapo and the existing Baguio Naval Reservation; Canacao-Sangley Point Navy Base, Cavite Province; Mactan Island Army and Navy Air Base; Florida Blanca Air Base, Pampanga; Camp Wallace, San Fernando, La Union; and Aparri Naval Air Base, among others. (Military Bases Agreement [March 14, 1947].)

^[38] Enhanced Defense Cooperation Agreement, Article XII(4).

^[39] BAYAN v. Zamora, supra note 2 at 653.

^[40] Id. at 657.

^[41] 113 Phil. 333,338(1961).

^[42] 656 Phil. 246,271-272 (2011).

^[43] Id. at 273.

^[44] Supra note 2.

^[45] Soriano III v. Lista, 447 Phil. 566, 570 (2003).

^[46] G.R. No. 202242, April 16, 2013, 696 SCRA 496, 507-508.

^[47] 430 Phil. 555, 571-572 (2002).

^[48] Mutual Defense Treaty, Preamble, paragraph 3.

^[49] Id., Preamble, paragraph 4.

^[50] Id., Article II.

^[51] Id., Article III.

^[52] Id., Article IV, first paragraph. Id., Article IV, second paragraph.

^[54] Id., Article V.

^[55] Id., Article VII.

^[56] Supra note 2 at 652.

^[57] Supra note 47 at 572.

^[58]  Visiting Forces Agreement, Article III.

^[59] Id., Article IV.

^[60] Id., Article V.

^[61] Id., Article VII.

^[62] Id., Article VIII.

^[63] Id., Article IX.

^[64] Enhanced Defense Cooperation Agreement, Article II.

^[65] Id., Article 111(4).

^[66] Id., Article 111(5).

^[67] Id., Article IV.

^[68] Id., Article V.

^[69] Id., Article VI.

^[70] Id., Article VII(l).

^[71] Id., Article VII(2).

^[72] Id., Article VIII.

^[73] Id., Article IX.

^[74] Id., Article X.

^[75] Id., Article XI.

^[76] Visiting Forces Agreement, Preamble, third paragraph.

^[77] Id., fifth paragraph.

^[78] http://www.oxforddictionaries.com/us/definition/american_english/visit. Accessed on December 14, 2015, 5:30 P.M.

^[79] Supra note 47 at 572-575.

^[80] Rollo (G.R. No. 212444), p. 481.

^[81] Webster's Third New International Dictionary [1993].

^[82] http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December 11, 2015, 11:48 A.M.

^[83] http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December 11, 2015, 11:48 A.M.

^[84] Webster's Third New International Dictionary [1993].

^[85] http://www.dtic.mil/doctrine/new_pubs/jpl_02.pdf. Accessed on December 11, 2015, 12:36 P.M.

^[86] Enhanced Defense Cooperation Agreement, Article 1(1 )(b).

^[87] Id., Article III(l).

^[88] Id., Article 11(4).

^[89] Id., Article 111(6).

^[90] Id., Article X(3).

^[91] Chief Justice Reynato S. Puno and Justice Carpio submitted stirring dissenting opinions which assail the constitutionality of the VFA on its being unenforceable due to the absence of ratification by the US Senate.

^[92] 661 Phil. 390, 406 (2011).

---

DISSENTING OPINION

BRION, J.:

Before this Court is the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA), an executive agreement with the United States of America (U.S.) that the Executive Department entered into and ratified on June 6, 2014.^[1]

This case is not an easy one to resolve for many reasons - the stakes involved in light of contemporary history, the limited reach of judicial inquiry, the limits of the Court's own legal competence in fully acting on petitions before it, and the plain and clear terms of our Constitution. While the petitions, the comments, and the ponencia all extensively dwell on constitutional, statutory, and international law, the constitutional challenge cannot be resolved based solely on our consideration of the Constitution nor through the prism of Philippine national interest considerations, both expressed and those left unspoken in these cases. In our globalized world where Philippine interests have long been intersecting with those of others in the world, the country's externalities - the international and regional situations and conditions - must as well be considered as operating background from where the Philippines must determine where its national interests lie.

From the practical point of view of these externalities and the violation of Philippine territorial sovereignty that some of us have expressed, a quick decision may immediately suggest itself - let us do away with all stops and do what we must to protect our sovereignty and national integrity.

What renders this kind of resolution difficult to undertake is the violation of our own Constitution - the express manifestation of the collective will of the Filipino people - that may transpire if we simply embrace the proffered easy solutions. Our history tells us that we cannot simply turn a blind eye to our Constitution without compromising the very same interests that we as a nation want to protect through a decision that looks only at the immediate practical view. To lightly regard our Constitution now as we did in the past, is to open the way to future weightier transgressions that may ultimately be at the expense of the Filipino people.

It is with these thoughts that this Opinion has been written: I hope to consider all the interests involved and thereby achieve a result that balances the immediate with the long view of the concerns besetting the nation.

I am mindful, of course, that the required actions that would actively serve our national interests depend, to a large extent, on the political departments of government - the Executive and, to some extent, the Legislature.^[2] The Judiciary has only one assigned role - to ensure that the Constitution is followed and, in this manner, ensure that the Filipino people's larger interests, as expressed in the Constitution, are protected.^[3] Small though this contribution may be, let those of us from the Judiciary do our part and be counted.

I. THE CASE

I.A. The Petitions

The challenges to the EDCA come from several petitions that uniformly question - based on Article XVIII, Section 25 of the 1987 Constitution - the use of an executive agreement as the medium for the agreement with the U.S. The petitioners posit that the EDCA involves foreign military bases, troops, and facilities whose entry into the country should be covered by a treaty concurred in by the Senate.

They question substantive EDCA provisions as well, particularly the grant of telecommunication and tax privileges to the U.S. armed forces and its personnel;^[4] the constitutional ban against the presence and storage of nuclear weapons within the Philippines;^[5] the violation of the constitutional mandate to protect the environment;^[6] the deprivation by the EDCA of the exercise by the Supreme Court of its power of judicial review;^[7] the violation of the constitutional policy on the preferential use of Filipino labor and materials;^[8] the violation of the constitutional command to pursue an independent foreign policy;^[9] the violation of the constitutional provision on the autonomy of local government units^[10] and of National Building Code;^[11] and, last but not the least, they question the EDCA for being a one-sided agreement in favor of the Americans.^[12]

I.B. The Respondents' Positions

The respondents, through the Office of the Solicitor General (OSG), respond by questioning the petitioners on the threshold issues of justiciability, prematurity and standing, and by invoking the application of the political question doctrine.^[13]

The OSG claims as well that the EDCA is properly embodied in an executive agreement as it is an exercise of the President's power and duty to serve and protect the people, and of his commander-in-chief powers;^[14] that the practical considerations of the case requires a deferential review of executive decisions over national security;^[15] that the EDCA is merely in implementation of two previous treaties - the Mutual Defense Treaty of 1951 (1951 MDT) and the Visiting Forces Agreement of 1998 (1998 VFA);^[16] that the President may choose the form of the agreement, provided that the agreement dealing with foreign military bases, troops, or facilities is not the principal agreement that first allowed their entry or presence in the Philippines.

I.C. The Ponencia

The ponencia exhaustively discusses many aspects of the challenges in its support of the OSG positions. It holds that the President is the chief implementor of the law and has the duty to defend the State, and for these purposes, he may use these powers in the conduct of foreign relations;^[17] even if these powers are not expressly granted by the law in this regard, he is justified by necessity and is limited only by the law since he must take the necessary and proper steps to carry the law into execution.

The ponencia further asserts that the President 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.^[18]

It adds that the 1951 MDT is not an obsolete treaty;^[19] that the 1998 VFA has already allowed the entry of U.S. troops and civilian personnel and is the treaty being implemented by the EDCA;^[20] that the President may generally enter into executive agreements subject to the limitations defined by the Constitution, in furtherance of a treaty already concurred in by the Senate;^[21] that the President can choose to agree to the EDCA either by way of an executive agreement or by treaty.^[22] While it compares the EDCA with the 1951 MDT and the 1998 VFA, it claims at the same time it merely implements these treaties.^[23]

On the exercise of its power of judicial review, the ponencia posits that the Court does not look into whether an international agreement should be in the form of a treaty or an executive agreement, save in the cases in which the Constitution or a statute requires otherwise;^[24] that the task of the Court is to determine whether the international agreement is consistent with applicable limitations;^[25] and that executive agreements may cover the matter of foreign military forces if these merely involve adjustments of details.^[26]

I.D. The Dissent

I dissent, as I disagree that an executive agreement is the proper medium for the matters covered by the EDCA. The EDCA is an agreement that, on deeper examination, violates the letter and spirit of Article XVIII, Section 25 and Article VII, Section 21, both of the Constitution.

The EDCA should be in the form of a treaty as it brings back to the Philippines

• 
  the modern equivalent of the foreign military bases whose term expired in 1991 and which Article XVIII, Section 25 of the Constitution directly addresses;
  
  
• 
  foreign troops under arrangements outside of the contemplation of the visiting forces that the 1998 VFA allows; and
  
  
• 
  military facilities that, under modern military strategy, likewise can be brought in only through a treaty.

As the ponencia does, I shall discuss the background facts and the threshold issues that will enable the Court and the reading public to fully appreciate the constitutional issues before us, as well as my reasons for the conclusion that the EDCA, as an executive agreement, is constitutionally deficient.

I purposely confine myself to the term "constitutionally deficient" (instead of saying "unconstitutional") in light of my view that the procedural deficiency that plagues the EDCA as an executive agreement is remediable and can still be addressed. Also on purpose, I refrain from commenting on the substantive objections on the contents of the EDCA for the reasons explained below.

II. THE THRESHOLD ISSUES
The petitioners bring their challenges before this Court on the basis of their standing as citizens, taxpayers, and former legislators. The respondents, on the other hand, question the justiciability of the issues raised and invoke as well the political question doctrine to secure the prompt dismissal of the petitions. I shall deal with these preliminary issues below, singly and in relation with one another, in light of the commonality that these threshold issues carry.

The petitioners posit that the use of an executive agreement as the medium to carry EDCA into effect, violates Article XVIII, Section 25 of the 1987 Constitution and is an issue of transcendental importance that they, as citizens, can raise before the Supreme Court.^[27] (Significantly, the incumbent Senators are not direct participants in this case and only belatedly reflected their institutional sentiments through a Resolution.)^[28] The petitioners in G.R. No. 212444 also claim that the constitutionality of the EDCA involves the assertion and protection of a public right, in which they have a personal interest as affected members of the general public.^[29]

The petitioners likewise claim that the EDCA requires the disbursement of public funds and the waiver of the payment of taxes, fees and rentals; thus, the petitioners have the standing to sue as taxpayers.^[30]

They lastly claim that the exchange of notes between the Philippines' Department of National Defense Secretary Voltaire Gazmin and U.S. Ambassador Philip Goldberg^[31] - the final step towards the implementation of the EDCA - rendered the presented issues ripe for adjudication.

The respondents, in response, assert that the petitioners lack standing,^[32] and that the petitions raise political questions that are outside the Court's jurisdiction to resolve.^[33]

They also argue that the issues the petitions raise are premature.^[34] The EDCA requires the creation of separate agreements to carry out separate activities such as joint exercises, the prepositioning of materiel, or construction activities. At present, these separate agreements do not exist. Thus, the respondents state that the petitioners are only speculating that the agreements to be forged under the EDCA would violate our laws. These speculations cannot be the basis for a constitutional challenge.

II.A. Locus Standi

The ponencia holds that the petitioners do not have the requisite standing to question the constitutionality of the EDCA, but chooses to give due course to the petitions because of the transcendental importance of the issues these petitions raise.^[35] In effect, the ponencia takes a liberal approach in appreciating the threshold issue of locus standi.

I agree with the ponencia's ultimate conclusions on the threshold issues raised. I agree as well that a justiciable issue exists that the Court can pass upon, although on both counts I differ from the ponencia's line of reasoning. Let me point out at the outset, too, that judicial review is only an exercise of the wider judicial power that Article VIII, Section 1 of the Constitution grants and defines. One should not be confused with the other.

Judicial review is part of the exercise of judicial power under Article VIII, Section 1 of the Constitution, particularly when it is exercised under the judiciary's expanded power (i.e., when courts pass upon the actions of other agencies of government for the grave abuse of discretion they committed), or when the Supreme Court reviews, on appeal or certiorari, the constitutionality or validity of any law or other governmental instruments under Section 5(2)(a) and (b) of Article VIII of the Constitution.

A basic requirement is the existence of an actual case or controversy that, viewed correctly, is a limit on the exercise of judicial power or the more specific power of judicial review.^[36]

Whether such case or controversy exists depends on the existence of a legal right and the violation of this right, giving rise to a dispute between or among adverse parties.^[37] Under the expanded power of judicial review, the actual case or controversy arises when an official or agency of government is alleged to have committed grave abuse of discretion in the exercise of its functions.^[38]

Locus standi is a requirement for the exercise of judicial review^[39] and is in fact an aspect of the actual case or controversy requirement viewed from the prism of the complaining party whose right has been violated.^[40]

When a violation of a private right is asserted, the locus standi requirement is sharp and narrow because the claim of violation accrues only to the complainant or the petitioner whose right is alleged to have been violated.^[41]

On the other hand, when a violation of a public right is asserted - i.e., a right that belongs to the public in general and whose violation ultimately affects every member of the public - the locus standi requirement cannot be sharp or narrow; it must correspond in width to the right violated. Thus, the standing of even a plain citizen sufficiently able to bring and support a suit, should be recognized as he or she can then be deemed to be acting in representation of the general public.^[42]

Transcendental importance is a concept (a much abused one) that has been applied in considering the requirements for the exercise of judicial power.^[43] To be sure, it may find application when a public right is involved because a right that belongs to the general public cannot but be important.^[44] Whether the importance rises to the level of being transcendental is a subjective element that depends on the user's appreciation of the descriptive word "transcendental" or on his or her calibration of the disputed issues' level of importance.

In either case, the use of transcendental importance as a justification is replete with risks of abuse as subjective evaluation is involved.^[45] To be sure, this level of importance can be used as justification in considering locus standi with liberality,^[46] but it can never be an excuse to find an actual controversy when there is none. To hold otherwise is to give the courts an unlimited opportunity for the exercise of judicial power - a situation that is outside the Constitution's intent in the grant of judicial power.

In the present cases, a violation of the Constitution, no less, is alleged by the petitioners through the commission of grave abuse of discretion. The violation potentially affects our national sovereignty, security, and defense, and the integrity of the Constitution - concerns that touch on the lives of the citizens as well as on the integrity and survival of the nation. In particular, they involve the nation's capability for self-defense; the potential hazards the nation may face because of our officials' decisions on defense and national security matters; and our sovereignty as a nation as well as the integrity of the Constitution that all citizens, including the highest officials, must protect.

In these lights, I believe that the issues involved in the present case are so important that a plain citizen sufficiently knowledgeable of the outstanding issues, should be allowed to sue. The petitioners - some of whom are recognized legal luminaries or are noted for their activism on constitutional matters - should thus be recognized as parties with proper standing to file and pursue their petitions before this Court.

II.B. Ripeness of the Issues Raised for Adjudication

I agree with the ponencia's conclusion that the cases before this Court, to the extent they are anchored on the need for Senate concurrence, are ripe for adjudication. My own reasons for this conclusion are outlined below.

Like locus standi, ripeness for adjudication is an aspect of the actual case or controversy requirement in the exercise of judicial power.^[47] The two concepts differ because ripeness is considered from the prism, not of the party whose right has been violated, but from the prism of the actual violation itself.

Of the two basic components of actual case or controversy, namely, the existence of a right and the violation of that right, ripeness essentially addresses the latter component.^[48] That a right exists is not sufficient to support the existence of an actual case or controversy; the right must be alleged to have been violated to give rise to a justiciable dispute. In other words, it is the fact of violation that renders a case ripe,^[49] assuming of course the undisputed existence of the right violated.

In the present cases, Article VIII, Section 25 of the Constitution lays down in no uncertain terms the conditions under which foreign military bases, troops, and facilities may be allowed into the country: there should at least be the concurrence of the Senate.

Under these terms, the refusal to allow entry of foreign military bases, troops, and facilities into the country without the required Senate concurrence is a prerogative that the people of this country adopted for themselves under their Constitution: they want participation in this decision, however indirect this participation might be. This prerogative is exercised through the Senate; thus, a violation of this constitutional prerogative is not only a transgression against the Senate but one against the people who the Senate represents.

The violation in this case occurred when the President ratified the EDCA as an executive agreement and certified to the other contracting party (the U.S.) that all the internal processes have been complied with, leading the latter to believe that the agreement is already valid and enforceable. Upon such violation, the dispute between the President and the Filipino people ripened.

The same conclusion obtains even under the respondents' argument that the constitutionality of the EDCA is not yet ripe for adjudication, since it requires the creation of separate agreements to carry out separate activities such as joint exercises, the prepositioning of materiel, or construction activities. To the respondents, the petitioners are merely speculating on their claim of unconstitutionality since these separate agreements do not yet exist.

Indeed, issues relating to agreements yet to be made are not, and cannot be, ripe for adjudication for the obvious reason that they do not yet exist. The question of the EDCA's constitutionality, however, does not depend solely on the separate agreements that will implement it. The fact that an executive agreement had been entered into, not a treaty as required by Article XVIII, Section 25 of the Constitution, rendered the agreement's constitutional status questionable. Thus, when the exchange of notes that signaled the implementation of the EDCA took place, the issue of its compliance with the constitutional requirements became ripe for judicial intervention under our expanded jurisdiction.

II.C. The Political Question Doctrine

Another threshold issue that this Court must settle at the outset, relates to the political question doctrine that, as a rule, bars any judicial inquiry on any matter that the Constitution and the laws have left to the discretion of a coordinate branch of government for action or determination.^[50]

The respondents raise the political question issue as part of their defense, arguing that the issues the petitioners raise are policy matters that lie outside the Court's competence or are matters where the Court should defer to the Executive.^[51]

The political question bar essentially rests on the separation of powers doctrine that underlies the Constitution.^[52] The courts cannot interfere with questions that involve policy determination exclusively assigned to the political departments of the government.^[53] The American case of Baker v. Carr^[54] best describes the standards that must be observed in determining whether an issue involves a political question, as follows:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.^[55]

From among these tests, the presence or absence of constitutional standards is the most relevant under the circumstances of the present consolidated cases.

After analyzing the issues raised, I find the respondents' position partly erroneous and partly premature for a political question doctrine ruling.

This conclusion proceeds from my recognition that a distinction should be drawn in recognizing the constitutional issues before us, some of which are procedural in character while others are substantive ones that require the application of different constitutional provisions.

The petitioners primarily question the constitutional validity of the EDCA for violation of Article XVIII, Section 25 of the 1987 Constitution. They challenge, as well, substantive provisions of the EDCA, among them, those relating to the grant of telecommunication privileges and tax exemptions to American visiting forces, and the EDCA provisions that would allegedly allow the entry of nuclear weapons into the country.

That the EDCA is an agreement that requires concurrence by the Senate before it can be considered valid and enforceable, is an issue that is essentially procedural as it requires that steps be taken before an international agreement can be considered fully valid and enforceable. It is an issue extrinsic to the terms of the EDCA and is properly a threshold issue that must be resolved before the substantive challenges to the EDCA's validity can be addressed.

Aside from being procedural, the issue relates as well to the standard set by the Constitution that delineates when an international agreement should be a treaty subject to Senate concurrence. The presence of this standard renders the determination of the medium to be used in forging an international agreement - whether as a treaty or as an executive agreement -an issue within the competence and authority of the courts to resolve in their role as guardians of the Constitution.^[56]

Thus, the main issue the petitioners pose - the constitutional status of the EDCA as an executive agreement in light of the mandate of Article XVIII, Section 25 of the Constitution - is not a political question outside the judiciary's competence and authority to resolve. The respondents' argument on this point is therefore erroneous.

If indeed a referral to the Senate is required and no referral has been made, then the EDCA is constitutionally deficient so that its terms cannot be enforced. This finding renders further proceedings on the merits of the substantive issues raised, pointless and unwarranted. There is likewise no point in determining whether the substantive issues raised call for the application of the political question doctrine.^[57]

On the other hand, the examination of the EDCA's substantive contents may be ripe and proper for resolution if indeed the EDCA can properly be the subject of an executive agreement. It is at that point when the respondents may claim that the substantive contents of the EDCA involve policy matters that are solely for the President to determine and that the courts may not inquire into under the separation of powers principle.^[58] It is only at that point when the application of the political question doctrine is called for.

In these lights (particularly, my position on the merits of the procedural issue raised), I find a ruling on the application of the political question doctrine to the substantive issues raised premature and unripe for adjudication; any ruling or discussion I may make may only confuse the issues when a proper petition on the constitutionality of the substantive contents of EDCA is filed.

III. THE FACTS
III.A. Historical, International and Regional Contexts

III.A(1) The Early Years of Philippines-U.S. Relationship

Active Philippine-American relations started in 1898, more than a century ago, when Commodore George Dewey and his armada of warships defeated the Spanish navy in the Philippines in the Battle of Manila Bay.^[59] The sea battle was complemented by land assaults by Philippine forces who were then in open rebellion against Spain under the leadership of General Emilio Aguinaldo.^[60]

The complementary effort started a relationship that, from the Philippine end, was characterized by hope of collaboration and assistance in the then colony's quest for independence from Spain.^[61] But the fulfillment of this hope did not come to pass and was in fact shattered when America, with its own geopolitical interests in mind, decided to fight the Philippine forces and to keep the Philippines for itself as a colony. The American objective was fully realized under the Treaty of Paris between Spain and the U.S., when the Philippines was handed by Spain to the U.S. as a colony.^[62]

The result, of course, was inevitable as the Philippine forces were not then fighting for a change of masters but for independence. The Philippine forces fought the Americans in the Philippine-American war, and lost.^[63]

Thus, a new colonizer took Spain's place. Unlike the Spanish colonial rule, however, one redeeming feature of the American colonial rule was the introduction of the concepts of democracy and governance.

As a colony, the Philippines, played a distinct role as the American outpost in the Far East as the American geopolitical interests slowly grew from the First World War years. By the end of the Second World War, the U.S.' international primacy was confirmed as the leader of the victor-nations. This international leadership role became sole leadership when the Soviet Union collapsed in the late 1980s. Thus, the U.S. now stands as the only global superpower whose military, economic, cultural, and technological reach and influence extend over all continents.^[64]

III.A(2) The Post-W. W. II Years

It was soon after Philippine independence, as the U.S. superpower status was rising, that the U.S. and the Philippines forged the Military Bases Agreement of 1947 (1947 MBA) and the 1951 MDT. The 1947 MBA was the agreement specific to the U.S. bases, troops, and facilities in the Philippines,^[65] while the 1951 MDT was the overarching document, entered into and ratified by the two countries as a treaty, to define the Philippine-American defense relationship in case of an armed attack by a third country on either of them.^[66] As its title directly suggests, it is a defense agreement.

The solidity of the R.P.-U.S. relationship that started in the colonizer-colony mode, shifted to defense/military alliance (through the MBA, MDT, and their supplementary agreements) after Philippine independence, and began to progressively loosen as the Philippines tracked its own independent path as a nation. Through various agreements,^[67] the American hold and the length of stay of American military bases in the Philippines progressively shrunk.

The death knell for the U.S. military bases started sounding when a new Philippine Constitution was ratified in 1987. The new Constitution provides that after the expiration of the agreement on military bases, no foreign military bases, troops or facilities shall be allowed except through a treaty concurred in by the Senate or with the direct consent of the Filipino people if Congress would require this mode of approval.^[68]

The actual end of the military bases came in 1991 when the 1947 MBA expired with no replacement formal arrangement in place except the 1951 MDT.^[69] For some years, R.P.-U.S. relationship on defense/military matters practically froze. The thaw only came when the 1998 VFA was negotiated and agreed upon as a treaty that the Philippine Senate concurred in.

III.A(3) The U.S. 's "Pivot to Asia" Strategy
During the latter part of the first term of the Obama Administration, the U.S. announced a shift in its global strategy in favor of a military and diplomatic "pivot" or "rebalance" toward Asia.^[70] The strategy involved a shift of the U.S.'s diplomatic, economic, and defense resources to Asia, made urgent by "the rise of Chinese regional power and influence, and China's apparent inclination to exercise its burgeoning military power in territorial disputes with its neighbors."^[71] These disputes affected sea lanes that are vital to the U.S. and its allies; hence, the U.S. was particularly concerned with their peaceful resolution.^[72] Critical to the strategy is the projection of American power and influence worldwide.

The key to the new strategy in the military-political area is "presence: forward deployment of U.S. military forces; a significant tempo of regional diplomatic activity (including helping Asian countries resolve disputes that they cannot resolve themselves); and promoting an agenda of political reform where it is appropriate"^[73] This meant, among others, the strengthening of American military alliance with Asian countries, including the Philippines.

The "pivot" has a direct relevance to Philippine concerns since it was prompted, among others, by "China's growing military capabilities and its increasing assertiveness of claims to disputed maritime territory, with implications for freedom of navigation and the United States' ability to project power in the region."^[74] The opening of new areas for military cooperation with the Philippines is among the announced features of the "pivot."^[75]

 III.A(4)The EDCA

It was soon after the launch of the "pivot" strategy that the initiatives for the EDCA came. The EDCA, of course, did not introduce troops into the country for the first time, as the 1998 VFA already ushered in the presence of U.S. military troops on a rotational but temporary basis.

What the EDCA brought with it was the concept of "agreed locations" to which the U.S. has "unimpeded access" for the refueling of aircraft; bunkering of ships; pre-positioning and storage of equipment, supplies and materials; the introduction of military contractors into the agreed locations; and the stationing and deployment point for troops.^[76]

In these lights, the confirmed and valid adoption of the EDCA would make the Philippines an active ally participating either as a forward operating site (FOS,) or Cooperative Security Location (CSL) in the American "pivot" strategy or, in blunter terms, in the projection and protection of American worldwide power. FOS and CSL shall be explained under the proper topic below.

All these facts are recited to place our reading of the EDCA in proper context - historically, geopolitically, and with a proper appreciation of the interests involved, both for the Philippines and the U.S.

The U.S. is in Asia because of the geopolitical interests and the world dominance that it seeks to maintain and preserve.^[77] Asia is one region that has been in a flux because of the sense of nationalism that had lain dormant among its peoples, the economic progress that many of its countries are experiencing as the economic winds shift to the East, and the emergence of China that — at the very least — is now gradually being recognized as a regional power with the potential for superpower status.^[78] The Philippines itself is encountering territorial problems with China because of the latter's claims in the West Philippine Sea; the Philippines has chosen the path of peace in the dispute through international arbitration.^[79]

EDCA and Article XVIII, Section 25 of the Constitution, in their larger regional signification, mean that the Philippines would thereafter, not only be bound as an American ally under the 1951 MDT, but as an active participant as "pivot" and projection points in the grand American strategy in Asia.

How the Philippines will react to all these developments is largely for the Executive and the people (through the Legislature) to determine. In making its decisions, they must - at the very least - show one and all that our country is entitled to respect as an independent and sovereign nation. This respect must come primarily from within the Philipines and the Filipinos themselves, from the nation's own sense of self-respect: in negative terms, the Filipino nation cannot attain self-respect unless it shows its respect for its own Constitution - the only instrument that binds the whole nation.

IV. THE PRESIDENT'S ROLE IN
GOVERNANCE AND ITS LIMITS

This discussion is made necessary by the ponencia's patent misconceptions regarding the role the President plays in governance as chief executive and implementor of policies and the laws.

IV.A. The Ponencia and My Objections

In upholding the constitutionality of the EDCA, the ponencia holds that the President's power and duty to ensure the faithful execution of our laws include the defense of our country as the commander-in-chief of the country's armed forces.^[80] It contends that these powers, combined with the President's capacity as the country's sole organ in foreign affairs, empower the President to enter into international agreements with other countries and give him the discretion to determine whether an international agreement should be in the form of a treaty or executive agreement.

The patent misconception begins when the ponencia asserts that the President cannot function with crippled hands: "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 he must 'take necessary and proper steps to carry into execution the law. "'^[81] It further adds that it is the President's prerogative to do whatever is legal and necessary for the Philippines' defense interests.^[82]

While acknowledging the Constitution's command that the entry of foreign military bases, troops, and facilities must be in a treaty, the ponencia asserts that the EDCA should be examined in relation with this requirement alone, as the President's wide authority in external affairs should be subject only to the limited amount of checks and restrictions under the Constitution.^[83]

It is within this framework that the ponencia concludes that the requirement under Article XVIII, Section 25 of the Constitution is limited to the initial entry of foreign military bases, troops, and facilities. Thus, once a treaty has allowed the entry of foreign military bases, troops, and facilities into the Philippines, the ponencia posits that the President may enter into subsequent executive agreements that involve "detail adjustments" of existing treaties.^[84]

I cannot fully agree with the ponencia's approach and with its conclusions.

First and foremost, the ponencia overlooks that as Chief Executive, the President's role is not simply to execute the laws. This important function is preceded by the President's foremost duty to preserve and defend the Constitution, the highest law of the land. The President's oath, quoted by the ponencia itself, in fact, states:

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.^[85] [Emphasis supplied]

The supremacy of the Constitution means that in the performance of his duties, the President should always be guided and kept in check by the safeguards that were crafted by the framers of the Constitution and ratified by the people. The Constitution prescribes the limitations to the otherwise awesome powers of the Executive who wields the power of the sword and shares in the power of the purse.

I also do not agree that constitutional limitations, such as the need for Senate concurrence in treaties, can be disregarded if they unduly "tie the hands" of the President.^[86] These limitations are democratic safeguards that place the responsibility over national policy beyond the hands of a single official. Their existence is the hallmark of a strong and healthy democracy. In treaty-making, this is how the people participate - through their duly-elected Senate - or directly when the Congress so requires. When the Constitution so dictates, the President must act through the medium of a treaty and is left with no discretion on the matter. This is the situation under Article XVIII, Section 25 of the Constitution, whose application is currently in dispute.

Let it be noted that noble objectives do not authorize the President to bypass constitutional safeguards and limits to his powers. To emphasize this point, we only need to refer to Article VI, Section 23(2) of the Constitution:

(2) In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such power shall cease upon the next adjournment thereof. [Emphasis supplied]

Thus, the President cannot, by himself, usurp the prerogatives of a co­equal branch to carry out what he believes is necessary for the country's defense interests. His position as the Commander-in-Chief of the Armed Forces of the Philippines (AFP) does not give him the sole discretion to increase our military's defensive capabilities; his role as commander-in-chief only gives him control of the military's chain of command. It grants him the power to call out the armed forces to prevent/suppress lawless violence, invasion, insurrection, or rebellion.^[87]

The modernization of the military, in particular, is a joint responsibility of the political branches of the State because the Congress is responsible for crafting relevant laws^[88] and for allocating funds for the AFP through the General Appropriations Act.^[89] The increase or decrease of funds and the extent of defense initiatives to be undertaken are national policy matters that the President cannot undertake alone.

IV.B. The President's Foreign Relations Power should be Interpreted in the Context of the Separation of Powers Doctrine

We cannot also interpret a provision in the Constitution in isolation and separately from the rest of the Constitution. Similarly, we cannot determine whether the Executive's acts had been committed with grave abuse of discretion without considering his authority in the context of the powers of the other branches of government.

While the President's role as the country's lead official in the conduct of foreign affairs is beyond question, his authority is not without limit. When examined within the larger context of how our tripartite system of government works (where each branch of government is supreme within its sphere but coordinate with the others), we can see that the conduct of foreign affairs, particularly when it comes to international agreements, is a shared function among all three branches of government.

The President is undeniably the chief architect of foreign policy and is the country's representative in international affairs.^[90] He is vested with the authority to preside over the nation's foreign relations which involve, among others, dealing with foreign states and governments, extending or withholding recognition, maintaining diplomatic relations, and entering into treaties.^[91] In the realm of treaty-making, the President has the sole authority to negotiate with other States.^[92]

IV.B(l) Separation of Powers and the Treaty-Making Process

This wide grant of authority, however, does not give him the license to conduct foreign affairs to the point of disregarding or bypassing the separation of powers that underlies our established constitutional system.

Thus, while the President has the sole authority to negotiate and enter into treaties, Article VII, Section 21 of the 1987 Constitution at the same time provides the limitation that two-thirds of the members of the Senate should give their concurrence for the treaty to be valid and effective.

Notably, this limitation is a not a new rule; the legislative branch of government has been participating in the treaty-making process by giving (or withholding) its consent to treaties since the 1935 Constitution. Section 10 (7), Article VII of the 1935 Constitution provides:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties x x x.

This tradition of legislative participation continued despite our presidential-parliamentary form of government under the 1973 Constitution, that is markedly different from the tripartite form of government that traditionally prevailed in the country. Section 14(1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

That we have consistently included the participation of the legislative branch in the treaty-making process is not without an important reason: it provides a check on the Executive in the field of foreign relations. By requiring the concurrence of the Legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balances necessary in the nation's pursuit of political maturity and growth.

Under this system, the functions of government are divided among three branches of government, each one supreme within its own sphere: the executive administers and enforces laws; the legislature formulates and enacts laws; and the judiciary settles cases arising out of the enforcement of these laws^[93] The requirement of Senate concurrence to the executive's treaty-making powers is a check on the prerogatiye of the Executive, in the same manner that the Executive's veto on laws passed by Congress^[94] is a check on the latter's legislative powers.

Even the executive agreements that the President enters into without Senate concurrence has legislative participation - they are implementations of existing laws Congress has passed or of treaties that the Senate had assented to.^[95] The President's authority to negotiate and ratify these executive agreements springs from his power to ensure that these laws and treaties are executed.^[96]

The judicial branch of government's participation in international agreements is largely passive, and is only triggered when cases reach the courts. The courts, in the exercise of their judicial power, have the duty to ensure that the Executive and Legislature stay within their spheres of competence;^[97] they ensure as well that constitutional standards and limitations set by the Constitution for the Executive and the Congress to follow are not violated.

Article VIII, Section 5 of the Constitution is even more explicit, as it gives the Supreme Court the jurisdiction "to review by appeal or certiorari all cases in which the constitutionality or validity of any treaty, international or executive agreement, law x x x is in question."

Thus, entry into international agreements is a shared function among the three branches of government. In this light and in the context that the President's actions should be viewed under our tripartite system of government, I cannot agree with the ponencia's assertion that the case should be examined solely and strictly through the constitutional limitation found in Article XVIII, Section 25 of the Constitution.

IV.B(2) Standards in Examining the President's Treaty-Making Powers
Because the Executive's foreign relations power operates within the larger constitutional framework of separation of powers, I find the examination of the President's actions through this larger framework to be the better approach in the present cases. This analytical framework, incidentally, is not the result of my original and independent thought; it was devised by U.S. Supreme Court Associate Justice Robert Jackson in his Concurring Opinion in Youngstown Sheet & Tube Co. v. Sawyer.^[98]

Justice Jackson's framework for evaluating executive action categorizes the President's actions into three: first, when the President acts with authority from the Congress, his authority is at its maximum, as it includes all the powers he possesses in his own right and everything that Congress can delegate.^[99]

Second, "when the President acts in the absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a [twilight zone where] he and Congress may have concurrent authority, or where its distribution is uncertain."^[100] In this situation, presidential authority can derive support from "congressional inertia, indifference or quiescence."^[101]

Third, "when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,"^[102] and the Court can sustain his actions "only by disabling the Congress from acting upon the subject."^[103]

This framework has been recently adopted by the U.S. Supreme Court in Medellin v. Texas,^[104] a case involving the President's foreign affairs powers and one that can be directly instructive in deciding the present case.

In examining the validity of an executive act, the Court takes into consideration the varying degrees of authority that the President possesses. Acts of the President with the authorization of Congress should have the "widest latitude of judicial interpretation"^[105] and should be "supported by the strongest of presumptions."^[106] For the judiciary to overrule the executive action, it must decide that the government resell lacks me power. In contrast, executive acts that are without congressional imprimatur would have to be very carefully examined.

IV.B(3) The Senate Objection to EDCA as an Executive Agreement

In the present cases, the President's act of treating the EDCA as an executive agreement has been disputed by the Senate, although the Senate is not an active party in the present cases.

On November 10, 2015, the Senate sent the Supreme Court a copy of Senate Resolution No. 1414^[107] expressing its sentiment that the EDCA should have been entered into in the form of a treaty. Furthermore, and as will be explained in the succeeding portions of this Dissenting Opinion, the EDCA's provisions are not all within the terms of the two treaties properly ratified by the Senate - the 1951 MDT and 1998 VFA; hence, the President could not have drawn his authority from these agreements.

Thus, contrary to the ponencia's assertion that the President's act of treating the EDCA as an executive agreement should be subject to the "least amount of checks and restrictions under the Constitution,"^[108] this presidential action should actually be very carefully examined, in light of the Senate's own expressed sentiments on the matter.

The mandatory character of the executive-legislative power sharing should be particularly true with respect to the EDCA, as its adoption signifies Philippine participation in America's pivot strategy by making our country one of the (ipivot" or projection points that would enforce America's military strategy. In taking this kind of step, the Senate must simply be there to give its consent, as the Constitution envisions in situations involving the entry of foreign military bases, troops, and facilities into the country.

In these lights, I propose that we examine the President's act of treating the EDCA not simply by the standard of whether it complies with the limitation under Article XVIII, Section 25 of the Constitution, but in the context of how our government functions, and of other relevant provisions in the Constitution.

IV.C. Constitutional Standards in Allowing the Entry of Foreign Military Bases, Troops, and Facilities in the Philippines

IV.C(l) Article VII, Section 21 of the Constitution and Treaty-Making

In general, the President's foreign affairs power must be exercised in compliance with Article VII, Section 21 of the Constitution, which requires the submission of treaties the President ratified, to the Senate for its concurrence. The Senate may either concur in, or withhold consent to, the submitted treaties.

Significantly, not all the international agreements that the President enters into are required to be sent to the Senate for concurrence. Jurisprudence recognizes that the President may enter into executive agreements with other countries,^[109] and these agreements - under the proper conditions - do not require Senate concurrence to be valid and enforceable in the Philippines.^[110]

IV.C(2) Treaties and Executive Agreements under Article VII Section 21

Where lies the difference, it may well be asked, since both a treaty and an executive agreement fall under the general title of international agreement?

An executive agreement emanates from the President's duty to execute the laws faithfully.^[111] They trace their validity from existing laws or from treaties that have been authorized by the legislative branch of government.^[112] In short, they implement, laws and treaties.

In contrast, treaties are international agreements that do not originate solely from the President's duty as the executor of the country's laws, but from the shared function that the Constitution mandates between the President and the Senate.^[113] They therefore need concurrence from the Senate after presidential ratification, in order to fulfill the constitutional shared function requirement.^[114]

Jurisprudential definitions of treaties and executive agreements are conceptually drawn from these distinctions although in Bayan Muna v. Romulo,^[115] we simply differentiated treaties from executive agreements in this wise:

Article 2 of the Vienna Convention on the Law of Treaties: An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.^[116] [Emphases supplied]

Bayan Muna likewise did not distinguish between treaties and executive agreements in terms of their binding effects on the contracting States concerned.^[117]  But neither one can contravene the Constitution.

This ambiguity perhaps might have been the root of the general statement that the Executive generally has the discretion to determine whether an international obligation should be in the form of a treaty or an executive agreement. This general statement, however, is far from complete and should be qualified because the Executive's exercise of discretion is affected and should be dictated by the demands of the enforceabiHty of the obligations the international agreement creates in the domestic sphere.

Between a treaty and an executive agreement, a treaty exists on a higher plane as it carries the authority of the President and the Senate.^[118] Treaties have the status, effect, and impact of statutory law in the Philippines; they can amend or prevail over prior statutory enactments.^[119]

Executive agreements - which exist at the level of implementing rules and regulations or administrative orders in the domestic sphere - carry no such effect.^[120] They cannot contravene statutory enactments and treaties and would be invalid if they do so.^[121]

Again, this difference in impact is traceable to the source of their authority; since a treaty has the approval of both the President and the Senate, it has the same impact as a statute. In contrast, since an executive agreement springs from the President's power to execute laws, it cannot amend or violate existing treaties, and must be in accord with and be made pursuant to existing laws and treaties.^[122]

Accordingly, the terms and objectives of the presidential entry into an international agreement dictates the form the agreement must take. When an international agreement is made merely to implement an existing law or treaty, then it can properly take the form of an executive agreement.^[123]

In contrast, when an international agreement involves the introduction of a new subject matter or the amendment of existins agreements or laws and has not passed the required executive and legislative processes, then it should properly be in the form of a treaty.^[124]

To reiterate, the consequence of the violation of this norm impacts on the enforceability of the international agreement in the domestic sphere; should an executive agreement amend or contravene statutory enactments and treaties, then it is void and cannot be enforced in the Philippines for lack of the proper authority on the part of the issuer.

In judicial terms, the distinctions and their consequences mean that an executive agreement that creates new obligations or amends existing ones, has been issued with grave abuse of discretion amounting to a lack of or in excess of jurisdiction, and can be judicially nullified under the courts' power of judicial review.

IV. C (3) Joint Reading of Article VII, Section 21 and Article XVIII, Section 25

The dynamics that Article VII, Section 21 embody, should be read into Article XVIII, Section 25 of the 1987 Constitution, which specifically covers and applies to the entry of foreign military bases, troops, or facilities into the country.

It is on the basis of this joint reading that the ponencia's conclusion -that Article XVIII, Section 25 applies only to the initial entry of foreign military bases, troops, and facilities in the country - is essentially incorrect.

Article XVIII, Section 25 does not provide for any such limitation in its applicability. Neither is there, anything in the language of the provision that remotely implies this consequence. What it simply states is that foreign military bases, troops, and facilities may only be present in Philippine soil in accordance with a treaty concurred in by the Senate.

When the terms of Article XVIII, Section 25 treaty does not provide for situations or arrangements subsequent to the initial entry of foreign military bases, troops, or facilities in the country and the subsequent arrangements are still attributed to the same treaty made pursuant to Section 25, the combined reading of Article VII, Section 21 and Article XVIII, Section 25 must now come into play.

This combined reading simply means that after the initial entry of foreign military bases, troops, or facilities in the Philippines under a duly ratified treaty, subsequent arrangements relating to foreign military bases, troops or facilities that are claimed to be based on the same treaty, should be examined based on the treaty-executive agreement distinctions recognized by jurisprudence under Article VII, Section 21 of the Constitution.

In other words, any subsequent international agreement referring to military bases, troops or facilities should be examined based on whether it creates a new obligation or implements an existins one. The determination of this question rests with the Executive but the treaty-executive agreement distinctions should limit the Executive's discretion when the new international agreement relates to a new obligation (or a change in an existing obligation) as the presence of foreign military bases, troops, or facilities in the Philippines should then be effected through another treaty.

To put it more bluntly, Article XVIII, Section 25 effectively removes the Executive's discretion in deciding the form of an international agreement because of this provision's explicit directive to use a treaty as the medium for new obligations created.

In Bayan v. Zamora,^[125] our conclusion supported this position. We explained that Article XVIII, Section 25 makes no distinction as to whether the presence of foreign military bases, troops, or facilities may be transient or permanent.^[126] By concluding that the permanence of foreign military bases, troops, or facilities is immaterial to the application of Article XVIII, Section 25, we effectively acknowledged that subsequent agreements that amend or introduce new obligations to existing treaties that previously allowed the entry of foreign military bases, troops or facilities, should be the subject of another treaty as they may enter the country on varying grounds, lengths or periods of time - all of which can change the nature of the obligations under existing treaties.

IV.C(4) The Dissent's Analytical Approach
Given these parameters, I propose that we examine the constitutionality of the Executive's act of entering into the obligations found in the EDCA in the form of an executive agreement with these two questions:

(1) Does the EDCA involve the introduction into the Philippines of foreign military bases, troops, or facilities that call for its examination under Article XVIII, Section 25?

(2) Does the EDCA impose new obligations, or amend or go beyond existing ones, regarding the presence of foreign military bases, troops, or facilities in the Philippines?

If the EDCA introduces foreign military bases, troops, or facilities in the Philippines within the contemplation of Article XVIII, Section 25 of the 1987 Constitution, and if these obligations are different from those found in our existing treaty obligations with the U.S., then the EDCA cannot be enforced in the Philippines without the Senate's concurrence. The ponencia is then incorrect and the Dissent must prevail.

Conversely, if the EDCA merely implements present treaty obligations - particularly those under the 1951 MDT and the 1998 VFA -then the President was well within his powers in the execution of our present treaty obligations. The ponencia is correct and the Dissent therefore fails.

V. THE APPLICATION OF ARTICLE XVIII,
SECTION 25 TO THE EDCA

V.A. The Article XVIII, Section 25 Dispute

When the subject of an international agreement falls under Article XVIII, Section 25 of the Constitution, the President - by constitutional command - must enter into a treaty subject to the concurrence of the Senate and, when Congress so desires, of the people through a national referendum.

This rule opens the door for Court intervention pursuant to its duty to uphold the Constitution and its further duty (under its power of judicial review) to pass upon any grave abuse of discretion committed by any official or agency of government. It is under this constitutionally-mandated terms that this Court invokes its power to review the constitutionality of the President's actions in handling the EDCA.

Within this framework, the issue these cases present is clear. The bottom line question is whether the President gravely abused his discretion in executing the EDCA as an executive agreement; the alleged existence of grave abuse of discretion constitutes the actual case or controversy that allows the exercise of judicial power. Whether grave abuse exists, in turn, depends on the determination of whether the terms of the EDCA imposed new or amended existing obligations involving foreign military bases, troops, and facilities in the Philippines.

If the EDCA does, then it should have been in the form of a treaty submitted to the Senate for its concurrence. In resolving this question, I am guided first, by the text of the Constitution itself and the meaning of its operative words in both their original and contemporaneous senses; second, by the spirit that motivated the framing of Article XVIII, Section 25; and third, by jurisprudence interpreting this provision.

The ponencia lays the premise that the President 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^[127]

The ponencia follows this premise with the position that Article XVIII, Section 25 refers only to the initial entry of bases, troops, or facilities, and not to the activities done after entry.^[128]

In construing Article XVIII, Section 25, the ponencia invokes the rule of verba legis, a cardinal rule of construction stating that when the law is clear and free from any doubt or ambiguity, then there is no room for construction or interpretation, only application.^[129] The law must be given its literal meaning and applied without attempted interpretation.^[130] The ponencia asserts that the plain meaning of "allowed in" refers solely to the initial entry.^[131] Thus, after entry, any subsequent acts involving foreign military troops, bases, or facilities no longer fall under the coverage of Article XVIII, Section 25.^[132]

I believe that the ponencia's approach and interpretation are incorrect because they are overly simplistic. The proper understanding of Article XVIII, Section 25 must take into account the many considerations that bear upon its plain terms, among them, the treaty-executive agreement distinctions under Article VII, Section 21 that I discussed above; the history of Article XVIII, Section 25; the motivations that drove the framers to adopt the provision; and the current and contemporaneous developments and usages that give full and effective meaning to the provision.

Separately from textual interpretation considerations and as part of the history of Article XVIII, Section 25, the basic concept of sovereignty that underlies it should not be forgotten.^[133] Sovereignty means the full right and power of the nation to govern itself, its people, and its territory without any interference from outside sources or entities.^[134] Within its territory, a nation reigns supreme. If it will allow interference at all, such interference should be under the terms the nation allows and has accepted;^[135] beyond those terms, the primacy of sovereignty is the rule.^[136]

Thus, if interference were to be allowed at all, or if exceptions to full sovereignty within a territory would be allowed, or if there would be any ambiguity in the extent of an exception granted, the interference, exception or ambiguity must be resolved in favor of the fullest exercise of sovereignty under the obtaining circumstances. Conversely, if any ambiguity exists at all in the terms of the exception or in the terms of the resulting treaty, then such terms should be interpreted restrictively in favor of the widest application of the restrictions embodied in the Constitution and the laws.

The ponencia cannot be incorrect in stating the rule that when terms are clear and categorical, no need for any forced constitutional construction exists;^[137] we need not divine any further meaning but must only apply terms in the sense that they are ordinarily understood.

A flaw, however, exists in the ponencia's application of verba legis as Article XVIII, Section 25 is neither plain nor that simple.

As pointed out above, it must be read together with Article VII, Section 21 for the general rules on the treaty-making process. It also expressly refers to a historical incident - the then coming expiration of the 1947 MBA. From these take-off points, the Article XVIII, Section 25 proceeds to a list of the matters it specifically addresses - foreign military bases, troops, or facilities.

All these bring up the question that has so far been left undiscussed -what are the circumstances that led to the expiration of the 1947 MBA and what are the foreign military bases, troops, and facilities that Article XVIII, Section 25 refers to?

V.B. The History and Intent of Article XVIII, Section 25

The history of Article XVIII, Section 25 of the Constitution is practically summed up in the introductory phrase of the provision - "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases x x x.

Purely and simply, the framers of the Constitution in 1986 then looked forward to the expiration of the U.S. bases coming in 1991 and wanted the terms of any future foreign military presence governed by the Constitution itself. Behind this intent is the deeper policy expressed under Article II, Section 7 of the Constitution -

The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

During the constitutional deliberation on Article XVIII, Section 25, two views were espoused on the presence of military bases in the Philippines. One view was that espoused by the anti-bases group; the other group supported the view that this should be left to the policy makers.

Commissioner Adolfo Azcuna expressed the sentiment of the first group when he stated in his privilege speech on 16 September 1986 that:

After the agreement expires in 1991, the question therefore, is: Should we extend a new treaty for these bases to stay put in 1991 in our territory? The position of the committee is that it should not, because the presence of such bases is a derogation of Philippine sovereignty.

It is said that we should leave these matters to be decided by the executive, since the President conducts foreign relations and this is a question of foreign policy. I disagree, Madam President. This is not simple a question of foreign policy; this is a question of national sovereignty. And the Constitution is anything at all, it is a definition of the parameters of the sovereignty of the people.^[138]

On the other hand, the second group posited that the decision to allow foreign bases into the country should be left to the policy makers. Commissioner Jose Bengzon expressed the position of this group that:

x x x this is neither the time nor the forum to insist on our views for we know not what lies in the future. It would be foolhardy to second-guess the events that will shape the world, our region and our country by 1991. It would be sheer irresponsibility and a disservice to the highest calibre to our own country if we were to tie down the hands of our future governments and future generations.^[139]

Despite his view that the presence of foreign military bases in the Philippines would lead to a derogation of national security, Commissioner Azcuna conceded that this would not be the case if the agreement would allow the foreign military bases, troops, and facilities to be embodied in a treaty.^[140]

After a series of debates, Commissioner Ricardo Romulo proposed an alternative formulation that is now the current Article XVIII, Section 25.^[141] He explained that this is an explicit ban on all foreign military bases other than those of the U.S.^[142] Based on the discussions, the spirit of the basing provisions of the Constitution is primarily a balance of the preservation of the national sovereignty and openness to the establishment of foreign bases, troops, or facilities in the country.

Article XVIII, Section 25 imposed three requirements that must be complied with for an agreement to be considered valid insofar as the Philippines is concerned. These three requirements are: (1) the agreement must be embodied in a treaty; (2) the treaty must be duly concurred in by 2/3 votes of all the members of the Senate;^[143] and (3) the agreement must be recognized as a treaty by the other State.

On the second requirement, the two-thirds concurrence of all the members of the Senate, the people's representative,^[144] may be viewed as the people's "voluntary submission" of their sovereignty so they can reap the greater benefits of the agreement that the President, as policymaker, entered into.

When the Congress so requires, the agreement should be ratified by a majority of the votes cast by the people in a national referendum held for that purpose.^[145] This additional requirement evinces the framers' intent to emphasize the people's direct participation in treaty-making.

In Bayan v. Zamora,^[146] the Court relaxed the third requirement when it ruled that it is sufficient that "the other contracting party accepts or acknowledges the agreement as a treaty." In that case, since the U.S. had already declared its full commitment to the 1998 VFA,^[147] we declared that it was unnecessary for the U.S. to further submit the agreement to the U.S. Senate.^[148]

This history highlights the importance of the issue now before us, and stresses as well how seriously the Constitution regards the Senate concurrence requirement. Thus, the issue can neither be simply glossed over nor disregarded on the basis of stretched legal technicalities. In case of doubt, as above discussed, such doubt should be resolved strictly in favor of what the Constitution requires in its widest sense.

V.C. Historical Roots of the U.S. Bases in the Philippines

As a U.S. colony after the Treaty of Paris of 1898, the whole Philippines could be equated to one big American base: the U.S. had sovereignty and had a free hand on how to deal with defense matters and its military forces in the Philippines.

The Tydings-McDuffie Act of 1934 provided for the Philippines' self-government and specified a procedural framework for the drafting of a constitution for the government of the Commonwealth of the Philippines^[149] within two years from the Act's enactment.^[150] The Act, more importantly, mandated the recognition by the U.S. of the independence of the Philippine Islands as a separate and self-governing nation after a ten-year transition period.^[151]

Prior to independence, the Act allowed the U.S to maintain military forces in the Philippines and to call all military forces of the Philippine government into U.S. military service.^[152] The Act empowered the U.S. President, within two years following independence, to negotiate for the establishment of U.S. naval reservations and fueling stations in the Philippine Islands.^[153]

The negotiations for American bases that took place after independence resulted in the 1947 MBA.

V.C(l) The 1947 Military Bases Agreement

The 1947 MBA between the Philippines and the U.S. was signed on March 16, 1947. The agreement officially allowed the U.S. to establish, maintain, and operate air and naval bases in the country.^[154] It provided for about 23 listed bases and facilities for use by Americans for a period of 99 years.^[155] The most important of these bases were the 180,000-acre Clark Air Base in Pampanga, then the biggest American airbase outside of the continental U.S.A., and the Subic Naval Base in Zambales.

The bases covered by the 1947 MBA were fixed bases where American structures and facilities had been built and arms, weapons, and equipment were deployed and stored, and where troops and civilian personnel were stationed, together with their families.

Other provisions of the 29-article 1947 MBA were the following:

• 
  The bases were properties over which the U.S. originally exercised sovereignty but this was subsequently transferred to the Philippines pursuant to the Romulo-Murphy Agreement of 1979. After the transfer, the U.S. and its armed forces and personnel were granted rent-free access up to the expiration of the Agreement.^[156]
• 
  The bases were for the mutual protection and cooperation of the two countries and for this purpose were for their use as U.S. and Philippine military installations.^[157]
• 
  The U.S. had the right, power and authority necessary for the establishment, operation, and defense of the bases and their control,^[158] specifically:
  
  
  • 
    To operate, maintain, utilize, occupy, garrison, and control the bases;
  • 
    To improve and deepen the harbors, channels and entrances and anchorage, and to construct and maintain necessary roads and bridges accessing the bases;
  • 
    To control the operation and safety of the bases and all the structures and facilities in them;
  • 
    To acquire right-of-way by agreement and to construct telecommunication and other facilities;
  • 
    To construct, install, maintain and employ on any base any type of facilities, weapons, substance, device, or vessel as may be necessary;
  • 
    To bring into the Philippines members of the U.S. military forces and U.S. nationals employed under contract by the U.S. with the families, as well as technical personnel of other nationalities not otherwise excluded from the Philippines.
  
  
  
• 
  The Philippine government was prohibited from granting any bases to other nations without U.S. consent. ^[159]
• 
  The U.S. was permitted to recruit Filipino citizens, on voluntary basis, for service in the American military.^[160]
• 
  The U.S. base commanders had the right to tax, distribute utilities, hand out licenses, search without warrants, and deport undesirables.^[161]

Complementing the signing of the 1947 MBA was the signing of the Military Assistance Agreement of 1947 and the 1951 MDT.

Over the years, various provisions of the 1947 MBA were amended, gradually delimiting U.S. control over the bases.^[162] On September 16, 1966, the Ramos-Rusk Agreement reduced its term to 25 years starting from that year.

A review of the 1947 MBA in 1979 led to the formal transfer of control of Clark and Subic bases to the Philippines.^[163] Thus, these bases became Philippine military installations containing U.S. military facilities. The review also provided that each base would be under a Filipino base commander, the Philippine flag was to fly singly in the bases; the Philippine government was to provide security along the bases' perimeters; and the review of the agreements would take place every five years starting in 1979.^[164]

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security that would have extended the life of the bases for 10 more years.^[165] The 1947 MBA was terminated on December 21, 1992 when the 25-year tenure lapsed. This prompted the U.S. to vacate its bases effective at the end of December 1992.^[166] The departure of the U.S. warship Bellau Wood marked the closure of American military bases in the country.^[167]

With the expiration of the 1947 MBA, the detailed arrangements for the presence of U.S. military forces and facilities in the Philippines, particularly those listed above, similarly ended, leaving only the general arrangements under the 1951 Mutual MDT.

V.C(2) The 1951 Mutual Defense Treaty

The 1951 MDT was signed on August 30, 1951, while the U.S. was establishing a number of bilateral defense alliances with key Asian States as it positioned itself to contain communist expansion in Asia in the period following World War II and the Korean War. Despite periods of drift, its relationship with its Asian allies provided the U.S. support and assistance throughout the Cold War and during the Vietnam war.^[168]

The 1951 MDT provided the general terms of the defense alliance between the U.S. and the Philippines; the more detailed terms were reflected in the earlier 1947 MBA that expired and was not renewed in 1991.

The 1947 MBA and the 1951 MDT were the counterparts of U.S. agreements with the North Atlantic Treaty Organization (NATO) countries. One of those agreements was the NATO Status of Forces Agreement (NATO-SOFA), a multilateral agreement that applies to all the NATO-member countries.^[169]

After the World War II, the U.S. maintained various European bases.^[170] Despite the presence of these bases, the U.S. entered into the NATO-SOFA on June 19, 1951, to define the terms for the deployment and status of its military forces in these countries.^[171] Most of the other NATO states, however, required ratification and implementing legislation, with additional agreements to implement the NATO-SOFA.^[172]

The 1951 MDT provides for an alliance - that both nations would support one another if either the Philippines or the U.S. would be attacked by an external party.^[173] It states that each party shall either, separately or jointly, through mutual aid, acquire, develop and maintain their capacity to resist armed attack.^[174] It provides for a mode of consultations to determine the 1951 MDT's appropriate implementation measures and when either of the parties determines that their territorial integrity, political independence, or national security is threatened by armed attack in the Pacific.^[175] An attack on either party will be acted upon in accordance with their constitutional processes and any armed attack on either party will be brought to the attention of the United Nations for immediate action.^[176]

The accord defines the meaning of an armed attack as including armed attacks by a hostile power on a metropolitan area of either party, on the island territories under their jurisdiction in the Pacific, or on their armed forces, public vessels, or aircrafts in the Pacific.^[177] The U.S. government guaranteed to defend the security of the Philippines against external aggression but not necessarily against internal subversion. The treaty expressly stipulates that its terms are indefinite and would last until one or both parties terminate the agreement by a one-year advance notice.^[178] The treaty subsequently became the basis for an annual joint exercise, known as Balikatan, between the Philippines and the U.S.^[179]

On the whole, the 1951 MDT embodied an alliance and defense agreement, focused as it is on joint action and defenses against armed external attacks. It made no provision for bases, troops, or facilities which the 1947 MBA contained and which lapsed when the MBA's term expired.

V.C(3) The 1998 Visiting Forces Agreement
The 1998 VFA came after the expiration of the 1947 MBA in 1991 and opened a limited window for the presence of American troops in the Philippines. It was entered into during the era when the U.S. was envisioning "access" as a new approach in maintaining its presence in Southeast Asia. Instead of permanent bases, the approach sought bilateral arrangements — like those with Singapore — for training, exercises, and interoperability to allow for uninterrupted forward deployment in the Asian region; their continued presence in the region assures faster response to developments in flash points in the eastern hemisphere.^[180]

In line with the American approach, the 1998 VFA allows the rotational presence of U.S. military forces and their operations anywhere in the Philippines for a temporary but undefined length of time to train and inter-operate with the Philippine armed forces and to use their facilities. The Philippines retains jurisdiction over criminal cases, including capital offenses, involving U.S. troops.^[181]

In Bayan v. Zamora,^[182] the Court held that although the agreement did not entail the permanent basing of a foreign military force, it required a treaty because Article XVI11, Section 25 of the Constitution covers not only the presence of bases but also the presence of "troops."^[183] As a treaty, the 1998 VFA required the concurrence of the Senate pursuant to Article VII, Section 21 of the Constitution.

The Court also held that the Philippines is bound to accept an official declaration by the U.S. to satisfy the requirement that the other contracting party must recognize the agreement as a treaty.^[184] It noted that the Vienna Convention on the Law of Treaties leaves each state free to choose its form of giving consent to a treaty.^[185]

V.D. The EDCA

As heretofore outlined, the U.S. adopted the "Pivot to Asia" strategy beginning 2009 under the administration of President Barack Obama. In the article Explaining the U.S. Pivot to Asia, Kurt Campbell and Brian Andrews enumerated six key efforts under the U.S.'s "Pivot to Asia" policy, namely: alliances; improving relationships with emerging powers; economic statecraft; engaging with multi-lateral institutions; support for universal values; and increasing military presence.^[186]

On military presence, the operative word is "presence": the forward deployment of U.S. military forces in Asia.^[187] The EDCA perfectly fits the American strategy as it allows the prepositioning of equipment and supplies in agreed locations to enhance the U.S.'s "development of a geographically dispersed, politically sustainable force posture in the region."^[188]

The EDCA was signed on April 28, 2014, in Manila, by Philippine Defense Secretary Voltaire Gazmin, and U.S. Ambassador to the Philippines Philip Goldberg, in time for the official state visit by U.S. President Barack Obama. The 10-year accord is the second military agreement between the U.S. and the Philippines (the first being the 1998 VFA) since American troops withdrew from its Philippines naval base in 1992.

The agreement allows the U.S. to station troops and operations on Philippine territory without establishing a permanent base^[189] and with the stipulation that the U.S. is not allowed to store or position any nuclear weapons on Philippine territory.^[190]

The EDCA was entered into for the following purposes:

1. This Agreement deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT, which states that "the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack," and within the context of the VFA. This includes:

(a) Supporting the Parties' shared goal of improving interoperability of the Parties' forces and for the Armed Forces of the Philippines ("AFP"), addressing short-term capabilities gaps; promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities; and

(b) Authorizing access to Agreed Location in the territory of the Philippines by United States forces on a rotational basis as mutually determined by the Parties.

2. In furtherance of the MDT, the Parties mutually agree that this Agreement provides the principal provisions and necessary authorizations with respect to Agreed Locations.

3. The Parties agree that the United States may undertake the following types of activities in the territory of the Philippines in relation to its access to and use of Agreed Locations: 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.^[191]

To summarize, the EDCA has two main purposes:

First, it is intended as a framework for activities for defense cooperation in accordance with the 1951 MDT and the 1998 VFA.

Second, it grants to the U.S. military the right to use certain identified portions of the Philippine territory referred to in the EDCA as Agreed Locations. This right is fleshed out in the EDCA when the agreement identifies the privileges granted to the U.S. in bringing in troops and facilities, in constructing structures, and in conducting activities.^[192]

The EDCA is effective for 10 years, unless both the U.S. and the Philippines formally agree to alter it.^[193] The U.S. is bound to hand over any and all facilities in the "Agreed Locations" to the Philippine government upon the termination of the Agreement.

In terms of contents, EDCA may be divided into two:

First, it reiterates the purposes of the 1951 MDT and the 1998 VFA in that it affirms the continued conduct of joint activities betweent the U.S. and the Philippines in pursuit of defense cooperation.

Second, it contains an entirety new agreement pertaining to Agreed Locations, the right of the LIS. military to stay in these areas and conduct activities which may not be imbued with mutuality of interests since they do not involve defense cooperation.

The latter provides support for two interrelated arguments that I will forward in this Opinion. First, the EDCA refers to the presence of foreign military bases, troops, and facilities in this jurisdiction. Second, the EDCA is not a mere implementation of, but goes beyond, the 1951 MDT and the 1998 VFA. It is an agreement that, introduces new terms and obligations not found in the 1951 MDT and the 1998 VFA, and thus requires the concurrence of the Senate.

V.D(l) Does the EDCA involve the entry of military bases to the Philippines as envisioned under Article XVIII, Section 25?

V.D(l)(i) The Concept of a Foreign Military Base

A reading of the EDCA will reveal that it pertains to the presence in this country of a foreign military base or the modem equivalent of one. While Article XVIII, Section 25 mentions no definition of what a foreign military base, troops, or facility is, these terms, at the time the 1987 Constitution was drafted, carried a special meaning. In fact, this meaning was the compelling force that convinced the framers to include Article XVIII, Section 25 in the 1987 Constitution.

More specifically, when the framers of the 1987 Constitution referred to foreign military bases, they had in mind the then existing 1947 MBA.^[194] This is apparent from the text of the provision itself which makes direct reference to the treaty, as well as from the exchanges of the framers of the 1987 Constitution prior to their vote on the proposed provision.^[195]

In construing the meaning of statutes and of the Constitution, one aim is to discover the meaning that the framers attached to the particular word or phrase employed.^[196] The pertinent statute or provision of the Constitution must then be "construed as it was intended to be understood when it was passed."^[197]

Thus, a proper interpretation of the meaning of foreign military bases must take into account how it was understood by the framers in accordance with how the 1947 MBA established U.S. military bases in the Philippines. It is in this technical and precise meaning that the term military base was used. It is this kind of military bases that Article XVIII, Section 25 intends to cover, subject to specific qualifications.

Hence, the concept of military bases as illustrated in the 1947 MBA should be taken into account in ascertaining whether the EDCA contemplates the establishment of foreign military bases. This reality renders a comparison of the 1947 MBA and the EDCA appropriate.

To clarify this position, it is not that the framers of the 1987 Constitution had in mind the specific existing foreign military bases under the 1947 MBA when they drafted Article XVIII, Section 25. Such a position unjustifiably assumes that the framers lacked foresight and merely allowed themselves to be solely limited by the existing facts.

Rather, my position is that it is the concept of a foreign military base under the 1947 MBA, and not the specific military bases listed in its Annexes, that should be determinative of what the Constitution intends to cover. The foreign military base concept should necessarily be adjusted, too, to take into account the developments under the new U.S. "Pivot to Asia" strategy.

V.D(l)(ii) EDCA and the 1947MBA Compared
A first material point to note is that the obligations under the EDCA are similar to the obligations found in the 1947 MBA. To support this view, I present below a side by side comparison of the relevant provisions of the EDCA and the 1947 MBA.

EDCA	1947 MBA
Article III, Section 1 With the consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training, transit, support and related activities, refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel and such other activities as the Parties may agree. Article VI, Section 3 United States forces are authorized to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense, including undertaking appropriate measures to protect United Stains forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.	Article III, par. 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.
Article III, Section 4 The Philippines hereby grants to the United States, through bilateral securit ymechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake activities on, and make alterations and improvements to, Agreed Locations, x x x	Article III, par. 2 (a) and (b) xxxx 2. Such rights, power, and authority shall include, interlia, the right, power and authority : (a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases; (b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases; x x x x
Article VII, Section 1. The Philippines hereby grants to United States forces and United States contractors the use of water, electricity, and other public utilities on terms and conditions, including rates of charges, no less favorable than those available to the AFP or the Government of the Philippines, x x x Article VII, Section 2 The Parties recognize that it may be necessary for United States forces to use the radio spectrum. The Philippines authorizes the United States to operate its own telecommunications systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union "ITU"). This shall include the right to utilize such means and services required to ensure the full ability to operate telecommunications systems and the right to use all necessary radio spectrum allocated for this purpose, xxx	Article III, par 2 (d) x x x x the right to acquire, as may be agreed between the two Governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including submarine and subterranean cables, pipe lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the two Governments to construct the necessary facilities; x x x x
Article IV, Section 1 The Philippines hereby authorizes United States forces, through bilateral mechanisms, such as the MDB and SEB, to preposition and store defense equipment, supplies and materiel ("prepositioned materiel"), including, but not limited to, humanitarian assistance and disaster relief equipment, supplies, and materiel, at Agreed Locations. United States forces x x x Article IV, Section 3 The prepositioned materiel of the United States shall be for the exclusive use of United States forces, and full title to all such equipment, supplies, and materiel remains with the United States. United States forces shall have control over the access and disposition of such prepositioned materiel and shall have the unencumbered right to remove such prepositioned materiel at any time from the territory of the Philippines. Article IV, Section 4 United States forces and United States contractors shall have unimpeded access j 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.	Article III, par (2) (e) x x x x to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.
Article III, Section 2 When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, an airfield) including those owned or controlled by local governments, and to other land and facilities (including roads, ports and airfields).	Article VII It is mutually agreed that the United States may employ and use for United States military forces any and all public utilities, other services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers and streams in the Philippines under conditions no less favorable than those that may be applicable from time to time to the military forces of the Philippines.

While the 1947 MBA grants broader powers to the U.S., due perhaps to the geopolitical context under which the agreement was forged (the 1947 MBA had an international, in contrast with EDCA's Asian, focus), the EDCA and the 1947 MBA essentially pursue the same purpose - the identification of portions of Philippine territory over which the U.S. is granted certain rights for its military activities.

These rights may be categorized into four:

(1) the right to construct structures and other facilities for the proper functioning of the bases;

(2) the right to perform activities for the defense or security of the bases or Agreed Locations;

(3) the right to preposition defense equipment, supplies and materiel; and,

(4) other related rights such as the use of public utilities and public services.

Only those who refuse to see cannot discern these undeniable parallelisms.

Further, even independently of the concept of military bases under the 1947 MBA, the provisions of the EDCA itself provide a compelling argument that it seeks to allow in this country what Article XVIII, Section 25 intends to regulate.

There exists no rigid definition of a military base. However, it is a term used in the field of military operations and thus has a generally accepted connotation. The U.S. Department of Defense (DoD) Dictionary of Military and Associated Terms defines a base as "an area or locality containing installations which provide logistic or other support"; home airfield; or home carrier.^[198]

Under our laws, we find the definition of a military base in Presidential Decree No. 1227 which states that a military base is "any military, air, naval, coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines."^[199] A military base connotes the presence, in a relatively permanent degree, of troops and facilities in a particular area.^[200]

In 2004, the U.S. DoD released Strengthening U.S. Global Defense Posture, a report to U.S. Congress about the renewed U.S. global position.^[201] The U.S. DoD redefined and reclassified their military bases in three categories:

Main Operating Base (MOB)

Main operating bases, with permanently stationed combat forces and robust infrastructure, will be characterized by command and control structures, family support facilities, and strengthened force protection measures. Examples include Ramstein Air Base (Germany), Kadena Air Base (Okinawa, Japan), and Camp Humphreys (Korea).

Forward Operating Site (FOS)

Forward operating site will be an expandable "warm facilities" maintained with a limited U.S. military support presence and possibly prepositioned equipment. FOSs will support rotational rather than permanently stationed forces and be a focus for bilateral and regional training. Examples include the Sembawang port facility in Singapore and Soto Cano Air Base in Honduras.

The following are the key characteristics of an FOS:

First, an FOS is an expandable/scalable facility. Andrew Krepinevich and Robert Work noted that an FOS can support both small and large forces, and can be readily expanded to serve as expeditionary or campaign bases should a crisis erupt nearby.^[202]

Second, the facility is maintained or "kept warm" by limited U.S. military support personnel or U.S. military contractors. It hosts rotational rather than permanently stationed forces. An FOS may also house prepositioned equipment.

Finally, an FOS facility does not need to be owned by the U.S. {i.e., the Sembawang Port Facility and the Paya Lebar Airfield in Singapore). FOSs are generally bases that support forward-deployed rather than forward-based forces.^[203]

The third classification of military bases is a Cooperative Security Location, described as follows:

Cooperative Security Location (CSL)

Cooperative security locations will be facilities with little or no permanent U.S. presence. Instead they will be maintained with periodic service, contractor, or host-nation support. CSLs will provide contingency access and be a focal point for security cooperation activities. A current example of a CSL is in Dakar, Senegal, where the U.S. Air Force has negotiated contingency landing, logistics, and fuel contracting arrangements, and which served as a staging area for the 2003 peace support operation in Liberia.^[204]

The GDPR emphasized that the U.S.'s plan is to establish a network ofFOSs and CSLs in Asia-Pacific to support the global war on terrorism and to provide multiple avenues of access for contingency operations.  These facilities serve to expand training opportunities for the U.S. and the host-country. FOSs and CSLs allow U.S. forces to use these areas in times of crisis while avoiding the impression of establishing a permanent presence.^[205] Notably, these access agreements are less expensive to operate and maintain than MOBs.^[206] Moreover, FOSs and CSLs allow overseas military presence with a lighter footprint.^[207]

To go back to the EDCA, it notably allows the U.S. to use the Agreed Locations for 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.^[208]

In order to carry out these activities, the EDCA allows U.S. military personnel to enter and remain in Philippine territory. It grants the U.S. the right to construct structures and assemblies.^[209] It also allows the U.S. to preposition defense equipment, supplies and materiel.^[210] The U.S. personnel may also use the Agreed Locations to refuel aircraft and bunker vessels.^[211]

Stockpiling of military materiel in the Philippines is explicitly permitted under the following EDCA provisions:

1. Article III, par. 1: The activities allowed on the agreed locations include: (i) the prepositioning of equipment, supplies, and materiel; (ii) deploying forces and materiel; and (iii) such other activities as the Parties may agree.
   
   
2. Article IV, par. 1: U.S. forces are allowed to preposition and store defense equipment, supplies, material ("prepositioned materiel"), including, but not limited to, humanitarian assistance and disaster relief equipment, supplies, and materiel, at agreed locations.
   
   
3. Article IV, par. 3: The prepositioned materiel is for the exclusive use of U.S. forces and full title shall belong to the U.S.
   
   
4. Article IV, par. 4: The U.S. forces and U.S. contractors shall have unimpeded access to the 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.

Notably, neither the 1951 MDT nor the 1998 VFA authorized stockpiling. The 1951 MDT focused on developing the Philippines and the U.S.'s capacity to resist an armed attack while 1998 VFA focused on the entry and exit of US troops in the country. No provision in either treaty specifically allows stockpiling of military materiel.

In sum, the Agreed Locations mentioned in the EDCA are areas where the U.S. can perform military activities in structures built by its personnel. The extent of the U.S.' right to use of the Agreed Locations is broad enough to include even the stockpiling of weapons and the shelter and repair of vessels over which the U.S. personnel has exclusive control. Clearly, this is a military base as this term is ordinarily understood.

Further, as we held in Bayan Muna, Article XVIII, Section 25 refers to three different situations: the presence of foreign military bases, troops, or facilities.^[212] Even assuming that the EDCA is not a basing agreement, it nevertheless involves the deployment of troops and facilities in Philippine soil. As I have already stated, the EDCA allows U.S. forces to enter and remain in the Philippines. It defines U.S. forces to include U.S. military and civilian personnel and U.S. Armed Forces property, equipment, and materiel.^[213] The EDCA itself provides that the U.S. can deploy forces and materiel in the Agreed Locations.^[214]

That the EDCA allows this arrangement for an initial period of 10 years, to continue automatically unless terminated,^[215] is further proof that it pertains to the presence in Philippine soil of foreign military bases, troops, and facilities on a more or less permanent basis.

Note, at this point, that the Senators, during the ratification of the 1998 VFA, observed that it only covers temporary visits of U.S. troops and personnel in the country. These Senators gave their consent to the 1998 VFA on the knowledge that the U.S. forces' stav in the country may last only up to three weeks to six months per batch.^[216]

This temporary stay of U.S. forces in the Philippines under the 1998 VFA means that it does not cover, or approve of a more permanent stay of U.S. forces and their equipment in the Philippines. Significantly, this is the key characteristic of the Agreed Locations in the EDCA. For, if the EDCA had not envisioned the stay of U.S. forces and equipment in the Agreed Locations in the Philippines for a period longer tlian envisioned in the 1998 VFA, it would not have added obligations regarding the storage of their equipment and materiel. The more permanent nature of the EDCA, in contrast to the 1998 VFA, indicates a change in the tenor of the agreement in the EDCA, one that does not merely implement the 1998 VFA.

V.D(2) Does the EDCA Merely Implement the 1951 MPT?

This question responds to the ponencia's argument that the EDCA can be embodied in an executive agreement because it merely provides implementing details for the 1951 MDT.^[217]

V.D(2)(i) The Effects of the Expiration of the 1947

MBA and of the Adoption of the 1987 Constitution

The sequence of events relating to American bases, troops, and facilities in the Philippines that took place since Philippine independence, is critical in responding to the question in caption. It should be remembered that as a condition under the Tydings-McDuffie Act for the grant of Philippine independence, the Philippines was bound to negotiate with the U.S. for bases in the Philippines, resulting in the 1947 MBA.

This agreement contained the detailed terms relating to the existence and operation of American bases and the presence of American forces and facilities in the Philippines. As its title denotes, the 1951 MDT is the treaty providing for alliance and mutual defense against armed attack on either country; it only generally contained the defense and alliance relationship between the Philippines and the U.S.

In 1987, the Philippines adopted a new Constitution. This Charter directly looked forward to the expiration of the 1947 MBA and provided for the terms under which foreign military bases, troops, and facilities would thereafter be allowed into the Philippines. The 1947 MBA expired in 1991 and no replacement treaty took its place; thus, all the detailed arrangements provided under the 1947 MBA for the presence of U.S. bases, troops and facilities also ended, leaving only the 1951 MDT and its general terms in place.

Under this situation, the detailed arrangements that expired with the 1947 MBA were not carried over to the 1951 MDT as this treaty only generally provided for the defense and alliance relationship between the U.S. and the Philippines. Thus, there were no specific policies on military bases, troops, and facilities that could be implemented and operationalized by subsequent executive agreements on the basis of the MDT.

In particular, the terms of the 1947 MBA that had expired and had not been renewed cannot be deemed carried over to the 1951 MDT. If any such future agreements would be made after the effectivity of the 1987 Constitution, then such agreements would be governed by Article XVIII, Section 25 of the new Constitution.

Significantly, when the 1987 Constitution and its Article XVIII, Section 25 took effect, no absolute prohibition against the introduction of new U.S. bases, troops, and facilities was put in place. In fact the 1951 MDT then still existed as a general defense alliance of the Philippines and the U.S. against armed attack by third parties. But the introduction of military bases or their equivalent, of troops, and of military facilities into the Philippines can now only take place by way of a treaty concurred in by the Senate.

V.D(2)(ii) The 1951 MDT examined in lisht of the EDCA

That the EDCA is purely an implementation of the 1951 MDT and does not need to be in the form of a treaty, is not tenable for two reasons.

First, The EDCA grants rights and privileges to the U.S. that go well beyond what is contemplated in the 1951 MDT and the 1998 VFA.

Second, even the assumptions that the EDCA is indeed a mere implementation of both the earlier 1951 MDT and the 1998 VFA, this assumption by no means provides an argument in favor of treating the EDCA as an executive agreement. Notably, the 1998 VFA is also recognized as an implementation of the 1951 MDT yet the Government deemed it necessary to have it embodied in a separate treaty concurred in by the Senate.

On the first argument an analysis of the 1951 MDT, the 1998 VFA, and the EDCA reveals that the EDCA is a stand-alone agreement.

The 1951 MDT is a treaty intended for the collective defense of its signatory countries (i.e., the U.S. and the Philippines) against external armed attack. This is apparent from its declaration of policies which states, among others, that the U.S. and the Philippines have agreed to the MDT in pursuit of their desire to-

x x x declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area.^[218]

The rest of the text of the 1951 MDT consistently highlights this goal. Its Article II states that the parties shall "separately and jointly by self-help and mutual aid maintain and develop their individual and collective capacity to resist armed attack." Article III provides that the parties shall "consult together" regarding the implementation of the MDT whenever in their opinion the "territorial integrity, political independence or security of either of the parties is threatened by external armed attack in the Pacific." Article IV declares that an armed attack in the Pacific area on either of the parties would be dangerous to each other's peace and safety and thus they would act to meet the common danger. Article V then proceeds to define an armed attack as to include an armed attack on "the metropolitan territory of either parties or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels and aircrafts in the Pacific."

This Court has had occasion to explain the nature of the 1951 MDT. In Lim v. Executive Secretary,^[219] we said —

xxx The MDT has been described as the core of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts x x x. [Emphasis supplied]

Thus, the essence of the 1951 MDT is the conduct of joint activities by the U.S. and the Philippines in accordance with the dictates of collective defense against an attack in the Pacific. This is a focus that the EDCA lacks.

V.D(2)(iii) The 1951 MDT Compared with Other Defense Alliance Agreements
Our military obligations to the U.S. under the 1951 MDT are (1) to maintain and develop our military capacity to resist armed attack, and (2) to recognize that an armed attack against the U.S. in the Pacific is an attack on the Philippines and to meet the common danger in accordance with our constitutional process. The relevant provisions read:

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 IV. Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article V. For purposes of ARTICLE IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.

(Fortunately, the limits of the 1951 MDT have not been tested in actual operation since neither the Philippines nor the U.S. has as yet been the subject of an armed attack in the Pacific region.)

In relating the 1951 MDT to the EDCA, I glean from the ponencia the intent to seize the term "mutual aid" in developing the contracting parties' collective capacity to resist an armed attack, as basis for the US to establish a military base or a military facility or station military troops in the Philippines.^[220] This reading, however, would be a novel one in the context of American agreements with other Asian countries with their own alliance and MDTs with the U.S.

Note that Article II of the RP-U.S. 1951 MDT is similar to the following provisions in other MDTs:

(1) The 1953 US-South Korean MDT

Article II
The Parties will consult together whenever, in the opinion of either of them, the political independence or security of either of the Parties is threatened by external armed attack. Separately and jointly, by self-help and mutual aid, the Parties will maintain and develop appropriate means to deter armed attack and will take suitable measures in consultation and agreement to implement this Treaty and to further its purposes.^[221]

(2) The 1954 US-Taiwan (Republic of China) MDT

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 and communist subversive activities directed from without against their territorial integrity and political stability.^[222]

(3) the 1960 US-Japan Treaty of Mutual Co-operation and Security

Article III
The Parties, individually and in cooperation with each other, by means of continuous and effective self-help and mutual aid will maintain and develop, subject to their constitutional provisions, their capacities to resist armed attack.^[223]

With little variance,^[224] these articles are essentially identical to Article II of the RP-U.S. 1951 MDT.

But notably, despite the existence of the above-mentioned provisions, all three treaties also saw the need to include a separate provision explicitly granting the U.S. the right to access and use of areas and facilities of the other contracting party. Thus:

Article IV
(US-Korea)
The Republic of Korea grants, and the United States of America accepts, the right to dispose United States land, air and sea forces in and about the territory of the Republic of Korea as determined by mutual agreement.^[225]

Article VII
(US-Taiwan)
The Government of the Republic of China (Taiwan) grants, and the Government of the United States of America accepts, the right to dispose such United States land, air and sea forces in and about Taiwan and the Pescadores as may be required for their defense, as determined by mutual agreement.^[226]

Article VI
(US-Japan)
For the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is granted the use by its land, air and naval forces of facilities and areas in Japan.

The use of these facilities and areas as well as the status of United States armed forces in Japan shall be governed by a separate agreement, replacing the Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America, signed at Tokyo on February 28, 1952, as amended, and by such other arrangements as may be agreed upon.^[227]

These three articles do not have any counterpart in the RP-US 1951 MDT. Understandably perhaps, counterpart provisions are not in the 1951 MDT as our commitment to grant the U.S. use and access to areas and facilities in the Philippine territory was embodied in an earlier agreement, the 1947 MBA (which, however, expired, thus ending the use and access grants to the U.S. and its armed forces).

In my view, the implication of the above-quoted provisions in the US-South Korea, US-Taiwan, and US-Japan treaties (on "mutual aid") is clear: the obligation to provide mutual aid under Article II of the RP-US 1951 MDT (and its counterpart provisions) does not include the obligation to allow the entry and the stationing of U.S. troops or the establishment of military bases or facilities.

In light particularly of the constitutional developments in 1987, the 1951 MDT cannot be invoked as an umbrella agreement that would legally justify the grant to the U.S. of entry, access, and use of Philippine-owned areas or facilities without Senate concurrence. These activities, which the EDCA seeks to do allegedly pursuant to the 1951 MDT, do not fall within the purview of our commitments under the earlier treaty.

V.D(3) Does the EDCA Merely Implement the 1998 VFA?

Is the EDCA merely an agreement implementing the 1998 VFA which already allows the limited entry of U.S. military troops and the construction of facilities?

The quick and short answer to the above question is — No, the EDCA does not implement the 1998 VFA as the EDCA in fact provides a wider arrangement than the 1998 VFA with respect to the entry of military bases, troops, and facilities into the Philippines. A naughty view is that the 1998 VFA should form part of the EDCA and not the other way around. Another reality, based on the treaty-executive agreement distinctions discussed above, is that the EDCA introduces new arrangements and obligations to those existing under the 1998 VFA; hence, the EDCA should be in the form of a treaty.

V.D(3)(i) The 1998 Visiting Forces Agreement
The Philippines' primary obligation under the 1998 VFA, is to facilitate the entry and departure of U.S. personnel in relation with "covered activities;"^[228] it merely defines the treatment of U.S. personnel visiting the Philippines; hence, its name.^[229] It is in fact a counterpart of the NATO-SOFA that the U.S. forged in Europe.

The Preamble of the VFA defines its objectives - to govern the terms of visits of "elements of the United States Armed Forces" to the Philippines, while the body of the agreement contains the agreed conditions. To quote from the relevant provisions of the 1998 VFA:

VISITING FORCES AGREEMENT

Preamble
The Government of the Republic of the Philippines and the Government of the United States of America,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area;

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 Republic of the Philippines and the United States promotes their common security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines;

Have agreed as follows:

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, x x x

x x x x

Article III: Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this Agreement, x x x

As the ponencia correctly observed, the 1998 VFA itself does not specify what "activities" would allow the entry of U.S. troops into the Philippines. The parties left this open and recognized that the activities that shall require the entry of U.S. troops are subject to future agreements and the approval by the Philippine Government.

How this approval, however, will be secured is far from certain. What is certain is that beyond the restrictive "visits" that the 1998 VFA mentions, nothing else is said under the express terms of the Agreement.

Harking back to the 1947 MBA and its clear and certain terms, what comes out boldly is that the 1998 VFA is not an agreement that covers "activities" in the way that the 1947 MBA did; it is simply an agreement regulating the status of and the treatment to be accorded to US. armed forces personnel and their aircraft and vehicles while visiting the Philippines. The agreement itself does not authorize U.S. troops to permanently stay in the Philippines, nor authorize any activity related to the establishment and the operation of bases, as these activities had been defined under the 1947 MBA.

As discussed under the treaty-executive agreement distinctions above, if indeed the activities would be in line with the original intent of the 1998 VFA, then an executive agreement would suffice as an implementing agreement. On the other hand, if the activity would be a modification of the 1998 VFA or would be beyond its terms and would entail the establishment of a military base or facility or their equivalent, and the introduction of troops, then, a treaty duly concurred in by the Senate would be the appropriate medium of the U.S.-Philippines agreement.

This Court has had the opportunity to examine the 1998 VFA in Bayan Muna^[230] and described the agreement in this wise -

On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.

In Lim v. Executive Secretary,^[231] this Court further explained:

The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel |may visitl temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. [Emphasis supplied]

The 1998 VFA allows the entry of U.S. military personnel to Philippine territory and grants the U.S. specific rights; it is essentially an agreement governing the rules for the visit of "US armed forces in the Philippines from time to time"^[232] in pursuit of cooperation to promote "common security interests;" it is essentially a treaty governing the sojourn of US forces in this country for joint exercises.^[233]

Significantly, the 1951 MDT and the 1998 VFA contain a similar feature -joint activities in pursuit of common security interests. The EDCA, on the other hand, goes beyond the terms of the 1951 MDT and the 1998 VFA.

As explained above, the EDCA has two purposes. First, it is an agreement for the conduct of joint activities in accordance with the 1951 MDT and the 1998 VFA. This, however, is not the centerpiece of the EDCA. Its centerpiece is the introduction of Agreed Locations which are portions of the Philippine territory whose use is granted to the U.S.^[234] The EDCA then proceeds to list the rights that the U.S. has over the Agreed Locations.^[235]

A reading of the EDCA's provisions shows that the rights and privileges granted to the U.S. do not always carry a concomitant right on the part of the Philippines nor do they involve joint exercises. While the EDCA mentions that the Agreed Locations may be used for "security cooperation exercises"^[236] and "joint and combined training activities,"^[237] the provisions of the EDCA also provide for the conduct of other activities beyond the 1951 MDT and the 1998 VFA.

Within the Agreed Locations, the U.S. may conduct trainings for its troops, transit, support and related activities.^[238] The EDCA also allows the U.S. to use the Agreed Locations to refuel aircraft, bunker vessels, temporarily maintain vehicles, vessels and aircraft.^[239] Significantly, it does not provide for any qualification on the purpose for the entry of these vessels, vehicles, and aircraft into Philippine jurisdiction.

The EDCA also permits the temporary accommodation of personnel,^[240] again without any qualification as to the purpose of their visit. The U.S. forces may also engage in communications activities including the use of its own radio spectrum,^[241] similarly without any limitation as to the purpose by which such communications shall be carried out.

Further, within the Agreed Locations, the U.S. can also preposition defense equipment, supplies, and materiel over which the U.S. forces shall have exclusive use and control.^[242] Clearly, the right to deploy weapons can be undertaken even if it is not in the pursuit of joint activities for common security interests.

These rights, granted to the U.S. under the EDCA, do not contain an element of mutuality in the sense that mutuality is reflected in the 1951 MDT and the 1998 VFA. As these rights go beyond the earlier treaties and are, in fact, independent sources of rights and obligations between the U.S. and the Philippines, they cannot be mere details of implementation of both the 1951 MDT and the 1998 VFA.

And, as pointed out earlier, the Agreed Locations under the EDCA are akin to the military bases contemplated under the 1947 MBA. Thus, by its own terms, the EDCA is not only a military base agreement outside the provisions of the 1951 MDT and the 1998 VFA, but a piecemeal introduction of military bases in the Philippines.

Note that, at this point, there exists no agreement on the establishment of U.S. military bases in the Philippines; the EDCA re-introduces a modernized version of the fixed military base concept contemplated and operationalized under the 1947 MBA.

V.D(4) The 1951 MPT and 1998 VFA in conjunction with the EDCA
An additional dimension that the EDCA introduces - the treatment of U.S. forces and U.S. contractors - reveals that it does not merely implement the 1951 MDT and the 1998 VFA, but adds to the obligations in these agreements.

To support its conclusion that the EDCA implements the provisions in the 1951 MDT and the 1998 VFA, the ponencia points out that the EDCA references 1951 MDT and the 1998 VFA in allowing the entry of U.S. personnel and U.S. forces in the Philippines, and that the entry of U.S. contractors (who had not been mentioned in the 1998 VFA) do not contradict the obligations found in the 1998 VFA.

The ponencia further notes that the U.S. contractors had been expressly excluded from the definition of U.S. personnel and U.S. forces, in line with their definitions in the 1998 VFA.^[243] They are not entitled to the same privileges that U.S. Personnel and U.S. forces enjoy under the 1998 VFA, but would have to comply with Philippine law to enter the Philippines.

The ponencia proceeds to argue that the lack of dissimilarities between the 1998 VFA and the EDCA point to the conclusion that the EDCA implements the 1998 VFA. By limiting the entry of persons under the EDCA to the categories under the 1998 VFA, the EDCA merely implements what had already been agreed upon under the 1998 VFA. The U.S. forces's authorization to perform activities under the EDCA does not change the nature of the EDCA as the 1998 VFA's implementing agreement, as the term "joint exercises" under the 1998 VFA denotes a wide range of activities that include the additional activities under the EDCA.

That the 1998 VFA and the EDCA are not dissimilar in terms of their treatment of U.S. forces and U.S. personnel, does not automatically mean that the EDCA simply implements the 1998 VFA, given the additional obligations that the EDCA introduces for the Philippine government.

As earlier discussed, the EDCA introduces military bases in the Philippines within the concept of the 1987 Constitution, and it is in light of these additional obligations that the EDCA's affirmation of the 1998 VFA should be viewed: the EDCA adds new dimensions to the treatment of U.S. Personnel and U.S. forces provided in the 1998 VFA, and these dimensions cannot be ignored in determining whether the EDCA merely implements the 1998 VFA.

Thus, while the EDCA affirms the treatment of U.S. personnel and U.S. forces in the Philippines, it at the same time introduces the Philippines' obligation to recognize the authority of U.S. Forces in the "Agreed Locations." Under the EDCA, U.S. forces can now preposition and store defense equipment, supplies, and materiel at Agreed Locations. They shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel. Lastly, the EDCA authorizes the U.S. forces to exercise all rights and authorities within the Agreed Locations that are necessary for their operational control or defense. In contrast, the 1998 VFA only refers to the tax and duty-free entry of U.S. Government equipment in connection with the activities during their visit.

In the same manner, and despite being in a different class as U.S. personnel and U.S. forces, U.S. contractors are also allowed "unimpeded access" to the Agreed Locations when it comes to all matters relating to the prepositioning and storage of defense equipment, supplies and materiel.

Thus, these groups of people (U.S. personnel, U.S. forces and U.S. contractors) have been referred to in the EDCA not merely to implement the 1998 VFA, but to further their roles in the Agreed Locations that the EDCA authorizes.

From these perspectives, the EDCA cannot be considered to be a simple implementation of the 1998 VFA. Rather, it is a continuation of the 1998 VFA under new dimensions. These dimensions should not and cannot be hidden behind reaffirmations of existing 1998 VFA obligations. These added dimensions reinforce the idea of military bases, as it allows them access to the Agreed Locations that, as I had earlier mentioned, is the cornerstone of the EDCA. From the legal end, the obligations under the EDCA, not its policy declarations and characterization, should be decisive in determining whether Section 25, Article XVIII applies.

Lastly, even assuming that the EDCA is an implementation of the 1951 MDT and the 1998 VFA, the practice of the Government reveals that even when an agreement is considered as an implementation of a prior treaty, the concurrence of the Senate must still be sought.

Early in the Senate deliberations on the 1998 VFA, the senator-sponsors characterized it merely as a subsidiary or implementing agreement to the 1951 MDT.^[244] Nevertheless, Senator Tatad, one of the 1998 VFA's co-sponsors, recognized that Article XVIII, Section 25 of the Constitution prohibits the 1998 VFA from being executed as a mere executive agreement,^[245] for which reason it was sent to the Senate for concurrence.

The senators agreed during the deliberations that an agreement implementing the 1951 MDT requires Senate concurrence.^[246] This is because the agreement, despite implementing or affirming the 1951 MDT, allows the entry of U.S. troops in the Philippines, a matter covered by Article XVIII, Section 25 of the Constitution.

Indeed, the 1998 VFA has been consistently treated as an implementation of the 1951 MDT. Nevertheless, the Government correctly chose to enter into the international agreement in the form of a treaty duly concurred in by the Senate, because it involves the entry of foreign military troops independent of, and in addition to, the general agreements in the 1951 MDT.

In the same manner, the EDCA, which purportedly implements and complements both the 1951 MDT and the 1998 VFA, should have likewise been submitted to the Senate for its concurrence because of the new obligations it introduces.

To reiterate, the EDCA allows for a more permanent presence of U.S. troops and military equipment in the Philippines (akin to establishing a base), which was not contemplated under the 1998 VFA. Thus, despite having been treated as an implementation of the 1951 MDT and the 1998 VFA, the new obligations under the EDCA calls for the application of Article XVIII, Section 25 of the Constitution and its submission to the Senate for concurrence.

V.E. The EDCA: the Actual and Operational View
As my last point, let me just say that the ponencia can engage in a lot of rationalizations and technical distinctions on why the EDCA provisions do not amount to or equate with the operation of military bases and the introduction of troops and facilities into the Philippines. The ponencia cannot escape the conclusion that translated to actual operational reality:

1. The activities described in the EDCA are no different from the operation of a military base in the 1947 sense, except that under the current U.S. strategy, a fixed base in the 1947 sense is hardly ever established because the expenses and administrative problems accompanying a fixed base can now be avoided. A military "facility" can very well serve the same purposes as a fixed military base under current technological advances in weaponry, transportation, and communications.^[247] The U.S. can achieve the same results at less expense and with lesser problems if it would have guaranteed access to and control of specified areas such as the Agreed Locations that the EDCA conveniently provides.
   
   FOSs or CSLs, as defined above, are expandable "warm facilities" maintained with limited U.S. military support presence and possibly prepositioned equipment.^[248] FOSs will support rotational rather than permanently stationed forces, and will be a focus for bilateral and regional training and for the deployment of troops and stored and prepositioned equipment, supplies, and materiel.^[249]
   
   As has already been mentioned, examples include the Sembawang port facility in Singapore and Soto Cano Air Base in Honduras. The Philippines will soon follow without the consent of the Filipino people and against the constitutional standards they set, if EDCA would be enforced without the benefit of Senate concurrence.
   
   
2. Under the "pivot to Asia strategy," the operative word is "presence" which means ready access to equipment, supplies, and materiel by troops who can be ferried from safer locations and immediately be brought to the scene of action from the Agreed Locations. The EDCA provides such presence through the Agreed Locations; the access to these secured locations; the prepositioning and storage of defense (read as "military") equipment, supplies, and materiel; and the forward jump-off point for the deployment of troops to whatever scene of action there may be that Philippine locations may serve best.
   
   
3. From the point of view of "troops" that Article XVIII, Section 25 likewise regulates through Senate concurrence, note that in the EDCA, contractual employees are mentioned together or side-by- side with the military. This is a relatively recent development where contractual employees are used to provide the same services and serve hand in hand or as replacement or to augment regular military forces. The U.S. has put these contractual employees to good use in various local theaters of conflict, notably in Iraq, Afghanistan and Syria.^[250] The U.S. has reportedly resorted to the use, not only of regular military forces, but of contractual employees who may provide the same services as military forces and who can increase their numbers without alerting the U.S. public to the actual number of troops maintained.

Based on all the above considerations, I conclude that the EDCA, instead of being in implementation of the 1951 MDT and the 1998 VFA, is significantly broader in scope than these two treaties, and effectively added to what the 1951 MDT and the 1998 VFA provide.

The EDCA is thus a new agreement that touches on military bases, troops, and facilities beyond the scope of the 1951 MDT and the 1998 VFA, and should be covered by a treaty pursuant to Article XVIII, Section 25 and Article VII, Section 21, both of the 1987 Constitution. Without the referral and concurrence by the Senate, the EDCA is constitutionally deficient and, hence, cannot be enforced in our country.

To remedy the deficiency, the best recourse RECOMMENDED TO THE COURT under the circumstances is for the Court to suspend the operations of its rules on the finality of its rulings and for the Court to give the President ninety (90) days from the service of its Decision, whether or not a motion for reconsideration is filed, the OPTION to refer the EDCA to the Senate for its consideration and concurrence.

The referral to the Senate shall serve as a main or supplemental motion for reconsideration' that addresses the deficiency, rendering the effects of the Court's Decision moot and academic. Otherwise, the conclusion that the President committed grave abuse of discretion by entering into an executive agreement instead of a treaty, and by certifying to the completeness of Philippine internal process, shall be fully effective.

As my last point, we must not forget that the disputed executive agreement that the President entered into is with the Americans from whom we trace the roots of our present Constitution. The Americans are a people who place the highest value in their respect for their Constitution. This should be no less than the spirit that should move us in adhering to our own Constitution. To accord a lesser respect for our own Constitution is to invite America's disrespect for the Philippines as a co-equal sovereign and independent nation.

---

^[1] Instrument of Ratification, Annex A of the Memorandum of OSG, rollo, p. 476. [per p. 14 of ponencia, to verify from rollo]

^[2] Constitution, Article VII, Section 21; Article XVIII, Section 25.

^[3] Derived from the Supreme Court's powers under Article VIII, Section 5(2)(a) of the Constitution.

^[4] Bayan Muna, et al. Petition (G.R. No. 212444), pp. 46-47, 79-81.

^[5] Id. at 52-57; Saguisag, et al. Petition (G.R. No. 212444), pp. 32-34.

^[6] Bayan Muna, et al. Petition (G.R. No. 212444), pp. 84-87.

^[7] Id. at 40-43; Saguisag, et al. Petition (G.R. No. 212444), pp. 34-36.

^[8] Bayan Muna, et al. Petition (G.R. No. 212444), pp. 82-84.

^[9] Id. at 23-27; Saguisag, et al. Petition (G.R. No. 212444), pp. 36-38.

^[10] Bayan Muna, et al. Petition (G.R. No. 212444), pp. 87-89.

^[11] Id. at 90-91.

^[12] Id. at 44-45, 58-59; Saguisag, et al. Petition (G.R. No. 212426), pp. 39-49.

^[13] OSG Consolidated Comment, pp. 3-8.

^[14] Id. at 10-13.

^[15] Id. at 13-14.

^[16] Id. at 14-21.

^[17] Ponencia, pp. 3-7, 25-27.

^[18] Id. at 29-43.

^[19] Id. at 31.

^[20] Id. at 48-52.

^[21] Id. at 34-43.

^[22] Id. at 43-46.

^[23] Id. at 48-72.

^[24] Id. at 46.

^[25] Id.

^[26] Id. at 46-48.

^[27] Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22; Bayan Muna, et al. Petition (G.R. No. 212444), p. 6.

^[28] Senate Resolution No. 105 dated November 10, 2015.

^[29] Bayan Muna, el al. Petition (G.R. No. 212444), pp. 9-10.

^[30] Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22.

^[31] Id at 19.

^[32] OSG Consolidated Comment, pp. 3-5.

^[33] Id at 5-7.

^[34] Id. at 7-8.

^[35] Ponencia, pp. 19-25.

^[36] Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014, 721 SCRA 146, 278-279.

^[37] Id. at 279-280.

^[38] See Separate Opinion of J. Brion in Imbong v. Ochoa, Jr., supra note 36, at 489-491.

^[39] Galicto v. Aquino, 683 Phil. 141, 170 (2012).

^[40] Ibid.

^[41] See David v. Macapagal Arroyo, 552 Phil. 705 (2006), where the Court held that in private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiffs standing is based on his own right to the relief sought.

^[42] De Castro v. Judicial and Bar Council, 629 Phil. 629, 680 (2010).

^[43] See Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 634 (2000), citing Tatad v. Secretary of the Department of Energy, G.R. No. 124360, December'3, 1997, 281 SCRA 330, 349, citing Garcia v. Executive Secretary, G.R. No. 101273, July 3, 1992, 211 SCRA 219; Osmeha v. COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750; Basco v. Pagcor, G.R. No. 91649, May 14, 1991, 197 SCRA 52; and Araneta v. Dinglasan, 84 Phil. 368 (1949).

^[44] Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM), G.R. No. 192088, October 9, 2012, 682 SCRA 602, 633-634.

^[45] See Separate Opinion of J. Brion in Cawad v. Abad, G.R. No. 207145, July 28, 2015, citing Quinto v. COMELEC, G.R. No. 189698, December 1, 2009, 606 SCRA 258, 276 and GMA Network v. COMELEC, G.R. No. 205357, September 2, 2014, 734 SCRA 88, 125-126.

^[46] See CREBA v. ERC, 638 Phil. 542, 556-557 (2010), where the Court provided "instructive guides" as determinants in determining whether a matter is of transcendental importance, namely: (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 with a more direct and specific interest in the questions being raised.

^[47] Imbong v. Ochoa, Jr., supra note 36, at 280.

^[48] Id.

^[49] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, 589 Phil. 387, 481 (2008).

^[50] Bondoc v, Pineda, 278 Phil. 784 (1991).

^[51] Javellana v. Executive Secretary, 151-A Phil. 36, 131 (1973), citing In Re McConaughy 119 N.W. 408, 417,

^[52] See Garcia v. Executive Secretary, 602 Phil. 64, 73-77 (2009).

^[53] Ibid.

^[54] 369 U.S. 186(1962).

^[55] Id. at 217.

^[56] Dueas v. House of Representatives Electoral Tribunal, 610 Phil. 730, 742 (2009); Lambino v. Commission on Elections, 536 Phil. 1,111 (2006).

^[57] See Constitution, Article VII, Section 21.

^[58] Bondoc v. Pineda, supra note 50, at 784.

^[59] On order of then U.S. Secretary of the Navy, Theodore Roosevelt, Commodore Dewey attacked the Spanish fleet in the Philippines. At noon of May 1, 1898, Commodore Dewey's ships had destroyed the Spanish fleet at the Battle of Manila Bay. See Bayan Muna, et al. Petition (G.R. No. 212444), pp. 11, citing http://www.history.com/this-day-in-history/battle-of-manila-bay.

See Zbigniew Brzesinski, The Grand Chessboard - American Primacy and its Geostrategic Imperatives (1997).

See also Fraser Weir. A Centennial History of Philippine Independence, 1898-1998: Spanish- American War - War of Philippine Independence 1898-1901. University of Alberta, available at https://www.ualberta.ca/-vmitchel/fw4.html; The Spanish-American War, 1898. United States Department of State, available at https://hislory.state.gov/milestones/1866-1898/spanish-american-war; and, The Spanish-American War in the Philippines (1989). American Experience, available at http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX87.html.

^[60] In the early part of 1898, the relations between the U.S. and Spain deteriorated. As the war became imminent, Commodore George Dewey, the commander of the U.S. Asiatic Squadron, had discussion with Emilio Aguinaldo's government in exile in Singapore and Hong Kong. See Weir, supra note 59.

^[61] In the early part of 1898, the relations between the U.S. and Spain deteriorated. As the war became imminent, Commodore George Dewey, the commander of the U.S. Asiatic Squadron, had discussion with Emilio Aguinaldo's government in exile in Singapore and Hong Kong. See Weir, supra note 59.

^[62] Treaty of Peace Between the United States and Spain (December 10, 1898), Article III: "Spain cedes to the United States the archipelago known as the Philippine Islands x x x"

See Yale Law School. The Avalon Project. Treaty of Peace between the United States and Spain. Available at http://avalon.law.yale.edu/19th century/sp 1898.asp.

^[63] Renato Constantino. The Philippines: A Past Revisited (1975), pp. 228-229.

^[64] See Brzesinski, supra note 59, at 3-29.

According to Brzesinski, America stands supreme in the four decisive domains of global power: (1) militarily, it has an unmatched global reach; (2) economically, it remains the main locomotive of global growth; (3) technologically, it retains the overall lead in the cutting-edge areas of innovation; and (4) culturally, despite some crassness, it enjoys an appeal that is unrivaled. The combination of all four makes America the only comprehensive superpower.

Brzesinski traced the trajectory of the US's rise to global supremacy beginning from World War I (WWI) to the end of the Cold War, noting that the U.S.'s participation in WWI introduced it as a new major player in the international arena. While WWI was predominantly a European war, not a global one, its self-destructive power marked the beginning of the end of Europe's political, economic and cultural preponderance over the rest of the world. The European era in world politics ended in the course of World War II (WWII), the first truly global war. Since the European (i.e., Germany) and the Asian (i.e., Japan) were defeated, the US and the Soviet Union, two extra-European victors, became the successors to Europe's unfulfilled quest for global supremacy.

The contest between the Soviet Union and the US for global supremacy dominated the next fifty years following WWII. The outcome of this contest, the author believes, was eventually decided by non-military means: political vitality, ideological flexibility, economic dynamism, and cultural appeal. The protracted competition, in the end, eventually tip the scales in America's favor simply because it was much richer, technologically much more advanced, militarily more resilient and innovative, socially more creative and appealing.

^[65] See Bayan Muna, et al. Petition, GR No. 212444, pp. 13-14; and Kilusang Mayo Uno, et al. petition-in-intervention, p. 7.

See also Stephen Shalom. Securing the U.S.-Philippine Military Bases Agreement of 1947, William Paterson University, available at http://www.wpuni.edu/dotAsset/209673.pdf; Robert Paterno. American Military Bases in the Philippines: The Brownell Opinion, available at http://philippinestudies,net/ojs,/index.php/ps/article/viewFile/2602/5224; James Gregor. The Key Role of U.S. Bases in the Philippines. The Heritage Foundation, available at http://www.heritage.org/research/reports/1984/01/the-key-role-of-us-bases-in-the-philippines; Maria Teresa Lim. "Removal Provisions of the Philippine-United States Military Bases Agreement: Can the United States Take it All" 20 Loyola of Los Angeles Law Review 421, 421-422. See Fred Greene. The Philippine Bases: Negotiating For the Future (1988), p. 4.

The 1947 Military Bases Agreement was signed by the Philippines and the U.S. on March 14, 1947; it entered into force on March 26, 1947 and was ratified by the Philippine President on January 21, 1948. See Charles Bevans. Treaties and Other International Agreements of the United States of America (1776-1949), Available at United States Department of State, https://books.google.com.ph/book?id=MUU6AQAAIAAJ&pg=PA55&lpg=PA55&dq=17+UST+1212;+TIAS+6084&source=bl&ots=VBtIV34ntR&sig=X2yYCbWVfjqF_o69-CcyiP88zw0&hl=en&sa=X&ved=0ahUKEwiKg-jXq8LJAhXRBY4KHSicDeAQ6AEIGzAA#v=onepage&q=17%20UST%201212%3B%20TIAS%206084&f=false.

The Philippine government also agreed to enter-into negotiations with the U.S., on the latter's request, to: expand or reduce such bases, exchange those bases for others, or acquire additional base areas. The agreement allowed the U.S. full discretionary use of the bases' facilities; gave criminal jurisdiction over U.S. base personnel and their dependents to the U.S. authorities irrespective of whether the alleged offenses were committed on or off the base areas. See Gregor, supra.

^[66] The Philippines and the U.S. signed the MDT on August 30, 1951. It came into force on August 27, 1952 by the exchange of instruments of ratification between the parties. See Mutual Defense Treaty, U.S.-Philippines, August 30, 1951, 177 U.N.T.S. 134. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20177/volume-177-1-2315-English.pdf; See also Bayan v. Gazmin petition, GR No. 212444, at 14; Saguisag v. Executive Secretary Ochoa petition, GR No. 212426, p. 8; and Kilusang Mayo Uno, et. al. petition-in-intervention, p. 7.

It was concurred in by the Philippine Senate on May 12, 1952; and was advised and consented to by the U.S. Senate on March 20, 1952, as reflected in the U.S. Congressional Record, 82nd Congress, Second Session, Vol. 98 - Part 2, pp. 2594-2595. See Nicolas v. Romulo, 598 Phil. 262 (2009).

^[67] 1956: The Garcia-Bendetsen conference resolved the issue of jurisdiction in the American bases. The US began to recognize sovereignty of the Philippine government over the base lands. See Exchange of Notes, U.S.-Philippines, December 6, 1956, available at http://elibrary.judiciary.gov.ph/thebookshelf/docmonth/Dec/1956/35.

1959: Olongapo, which was then an American territory, was officially turned over by the US to the Philippines. Over the years, 17 of the 23 military installations were also turned over to the Philippines. See Memorandum of Agreement, U.S.-Philippines, October 12, 1959, available at http://elibrary.iudiciarv.itov.ph/thebooksheliyshowdocs/35/11192.

1965: An agreement was signed revising Article XIII of the treaty wherein the US will renounce exclusive jurisdiction over the on-base offenses and the creation of a joint criminal jurisdiction committee. See Exchange of Notes, U.S.-Philippines, August 10, 1965, available at http://elibrarv.iudiciarv.gov.ph/thebookshelf/showdocs/35/10934.

1966: The Ramos-Rusk Agreement reduced the term of the MBA to 25 years starting from that year. See Exchange of Notes, U.S.-Philippines, September 16, 1966, available at http://elibrary.judiciary.gov.ph/thebookshelgsliowdocs/35/10859.

1979: The US reaffirmed Philippine sovereignty over the, basis and placed each base under command of a Philippine base commander. See Office of the President of the Philippines. (1979). Official Week in Review. Official Gazelle of the Republic of the Philippines, 75(1), iii-iv, available at http://www.gov.ph/1979/01/08/official-week-in-review-january-1-january-7-1979/.

^[68] Constitution, Article XVIII, Section 25.

^[69] On September 16, 1991, the Philippine Senate voted to reject a new treaty that would have extended the presence of U.S. military bases in the Philippines. See Bay an v. Zamora, 396 Phil. 623, 632 (2002), citing the Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and Security on the Visiting Forces Agreement.

^[70] United States Department of Defense. Sustaining U.S. Global Leadership: Priorities for 21st Century Defense (January 2012), p. 2, available at http://archive.defense.gov/news/Defense Strategic Guidance.pdf.

^[71] John Hemmings. Understanding the U.S. Pivot: Past, Present, and Future. 34(6) Royal United Services Institute Newsbrief (November 26, 2014), available at littps://hemmingsiohn.wordpress.com/2014/l l/27/understandine,-the-us-pivot-past-present-and-future/

^[72] Ibid.

^[73] Richard Bush, No rebalance necessary: The essential continuity of U.S. policy in the Asia-Pacific. Brookings Institution (March 18, 2015), available at http://www.brookings.edu/bIogs/order-from-chaos/posts/2015/18-value-of-continuity-us-policy-in-asia-pacific.

^[74] US Congressional Research Service, Pivot to the Pacific? The Obama Administration's "Rebalancing" Toward Asia, March 28, 2012, p. 2. Available at http://www.fas.org/sgp/crs/natsec/R42448.pdf.

^[75] United States Department of Defense. The Asia-Pacific Maritime Security Strategy: Achieving U.S. National Security Objectives in a Changing Environment, (2015), p. 23. Available at http://www.defense.gov/Ponals/1/Documents/pubs/NDAA%20A-P_Maritime_SecuritY_Strategy-08142015-1300-FlNALFORMAT.PDF.

^[76] EDCA, Article III.

^[77] David Vine, Base Nation: How U.S. Military Bases Abroad Harm America and the World (2015), pp. 300-301.

^[78] Brzesinski, supra note 59, at 151-193.

^[79] The arbitration case was filed before the Permanent Court of Arbitration on January 22, 2013. See Republic of the Philippines v. the People's Republic of China, Permanent Court of Arbitration, available at http://www.pca-cpa.org/showpage65f2.html?pag_id=1529.

^[80] Ponencia, pp. 25-28.

^[81] Id. at 27.

^[82] Id. at 28.

^[83] Id. at 28-46.

^[84] Id. at 28-34, 46-95.

^[85] Constitution, Article VII, Section 5.

^[86] Although the ponencia recognized constitutional provisions that restrict or limit the President's prerogative in concluding international agreements (see ponencia, pp. 34-43), it contradictorily asserts that "[n]o 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, Sec. 25" and that "[t]he President had the choice to enter into the EDCA by way of an executive agreement or a treaty." See ponencia, p. 43.

^[87] Constitution, Article VII, Section 18.

^[88] The Constitution vests legislative power upon the Congress of the Philippines. Thus, the Congress has the power to determine the subject matters it can legislate upon. See Constitution, Article VI, Section 1.

^[89] Constitution, Article VI, Section 25.

^[90] Pimentel v. Executive Secretary, 501 Phil. 303, 317-318 (2005).

^[91] Ibid.

^[92] Ibid.

^[93] Angara v. Electoral Commission, 63 Phil 139 (1936).

^[94] Constitution, Article VI, Section 27(2).

^[95] Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333, 338-340 (1961).

^[96] Constitution, Article VII, Sections 5 and 17.

^[97] Angara v. Electoral Commission, supra note 93, at 157-159.

^[98] 343 U.S. 579(1952).

^[99] Id. at 635.

^[100] Id. at 637.

^[101] Ibid.

^[102] Ibid.

^[103] Youngstown Sheet v. Sawyer, supra note 98, at 637-638.

^[104] 552 U.S. 491 (2008).

^[105] Id. supra note 98, at 637.

^[106] Ibid.

^[107] Senate Resolution No. 1414 was entitled as the "Resolution expressing the strong sense of the Senate that any treaty ratified by the President of the Philippines should be concurred in by the Senate, otherwise the treaty becomes invalid and ineffective." It was signed by thirteen Senators: Senators Defensor-Santiago, Angara, Cayetano, P., Ejercito, Estrada, Guingona III, Lapid, Marcos, Jr., Osmeña III, Pimentel III, Recto, Revilla, Jr.. and ' Villar. Available at https://www.senate.gov.ph/listdata/2175018478!.pdf.

^[108] Ponencia, pp. 45-46.

^[109] See Land Bank of the Philippines v. Atlanta Industries, Inc., G.R. No. 193796, July 2, 2014, 729 SCRA 12, 30-3), citing Bayan Muna v. Romulo, 656 Phil. 246, 269-274 (2011); Neri v. Senate Committee on Accountability of Public Officers and Investigations, 586 Phil 135, 168 (2008), citing Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1038 (1959); Commissioner of Customs v. Eastern Sea Trading, supra note 95

^[110] Ibid.

^[111] Constitution, Article VII, Sections 5 and 17.

^[112] Commissioner of Customs v. Eastern Sea Trading, supra note 95.

^[113] Constitution, Article VII, Section 21. See also Bayan Muna v. Romulo, supra note 109, at 269-270.

^[114] Ibid.

^[115] Supra note 109.

^[116] Id. at 269.

^[117] Ibid.

^[118] Bayan Muna v. Romulo, supra note 109, at 270, citing Herein, Foreign Affairs and the United States Constitution 224 (2nd ed., 1996), and Edwin Borchard, Treaties and Executive Agreements - Reply, Yale Law Journal, June 1945.

^[119] Ibid.

^[120] Gonzales v. Hechanova, 118 Phil. 1065, 1079 (1963).

^[121] Adolfo v. CFI of Zamhales, 145 Phil. 264, 266-268 (1970).

^[122] Bayan Muna v. Romulo, supra note 109. at 1079-1080.

^[123] Ibid.

^[124] Ibid.

^[125] Supra note 69.

^[126] Id. at 653.

^[127] Ponencia, p. 29.

^[128] Id. at 33.

^[129] Bolos v. Bolos, G.R. No. 186400, 20 October 2010, 634 SCRA 429 437

^[130] Ponencia, p. 32.

^[131] Id. at 33.

^[132] Ibid.

^[133] IV Record, Constitutional Commission 84, 659 and 661 (September 16, 1986), which reads:

MR. AZCUNA: After the agreement expires in 1991, the question, therefore, is: Should we extend a new treaty for these bases to stay put in 1991 in our territory? The position of the committee is that it should not, because the presence of such bases is a derogation of Philippine sovereignty.

It is said that we should leave these matters to be decided by the executive, since the President conducts foreign relations and this is a question of foreign policy. I disagree, Madam President. This is not simply a question of foreign policy; this is a question of national sovereignty, x x x

FR. BERNAS: My question is: Is it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?

MR. AZCUNA: It is difficult to imagine a situation based on existing facts where it would not. x x x

^[134] IV Record, Constitutional Commission 84, 659 and 661 (September 16, 1986), which reads:

MR. AZCUNA: After the agreement expires in 1991. the question, therefore, is: Should we extend a new treaty for these bases to stay put in 3 991 in our territory? The position of the committee is that it should not, because the presence of such bases is a derogation of Philippine sovereignty.

It is said that we should leave these matters to be decided by the executive, since the President conducts foreign relations and this is a question of foreign policy. I disagree, Madam President. This is not simply a question of foreign policy; this is a question of national sovereignty, x x x

FR. BERNAS: My question is: Is it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?

MR. AZCUNA: It is difficult to imagine a situation based on existing facts where it would not. x x x

^[135] See Tanada v. Angara, 338 Phil." 546, 593 (1997), citing Reagan v. Commission on Internal Revenue, 141 Phil. 621. 625 (1969), where the Court discussed the concept of auto-limitation, viz.: "It is to be admitted that any State may by its consent, express or implied, submit to a restriction of its sovereignty rights. That is the concept of sovereignty as auto-limitation which, in the succinct language of Jellinek, 'is the property of a state-force due to which it has the exclusive capacity of legal-self determination and self-restriction.' A State then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence."

^[136] Ibid.

^[137] Ponencia, p. 32.

^[138] 111 Record, Constitutional Commission 86 (16 September 1986), p. 659.

^[139] IV Record, Constitutional Commission 82 (13 September 1986), pp. 617-618.

^[140] IV Record, Constitutional Commission 84 (16 September 1986), pp. 661-662, which reads:

FR. BERNAS. My question is: is it the position of the committee that the presence of foreign military bases in the country under any circumstances is a derogation of national sovereignty?

MR. AZCUNA: It is difficult to imagine a situation based on existing facts where it would not. However, in the abstract, it is possible that it would not be that much of a derogation. 1 have in mind. Madam President, the argument that has been presented. Is that the reason why there are US. bases in England, in Spain and in Turkey? And it is not being claimed that their sovereignty is being derogated. Our situation is different from theirs because we did not lease or rent these bases to the U.S. The US. retained them from us as a colonial power.

x x x x

FR. BERNAS: Does the first sentence tolerate a situation radically different from what obtains now? In other words, if we understand sovereignty as autolimitation, as a people's power to give up certain goods in order to obi.tin something which may be more valuable, would it be possible under this first sentence for the nation to negotiate some kind of a treaty agreement that would not derogate against sovereignty?

MR. AZCUNA: Yes. For example, Madam President, if it is negotiated on a basis of true sovereign equality, such as a mutual ASEAN defense agreement wherein an ASEAN force is created and this ASEAN force is a foreign military force and may have a basis in the member ASEAN countries, this kind of a situation, I think would not derogate from sovereignty.

^[141] IV Record, Constitutional Commission 86 (18 September 1986), p. 787, which reads:

MR. ROMULO: Madam President, may I propose my amendment to the Bernas amendment: "AFTER THE EXPIRATION OF THE RP--US AGREEMENT IN 1991, FOREIGN MILITARY BASES, TROOPS OR FACILITIES SHALL NOT BE ALLOWED IN THE PHILIPPINE TERRITORY EXCEPT UNDER THE TERMS OF A TREATY DULY CONCURRED IN BY THE SENATE, AND WHEN CONGRESS SO REQUIRES RATIFIED BY A MAJORITY OF THE VOTES CAST BY THE PEOPLE IN A REFERENDUM HELD FOR THAT PURPOSE AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."

^[142] IV Record, Constitutional Commission 86 (18 September 1986), p. 780; which reads:

FR. BERNAS: On the other hand, Madam President, if we place it in the Transitory Provisions and mention only the American State, the conclusion might be drawn that this applies only to foreign military bases of the United States. The conclusion might be drawn that the principle does not apply to other states.

MR. ROMLJLO: That is certainly not our meaning. We do not wish any other foreign military base here and I think the phrase which says: "NO FOREIGN MILITARY BASES, TROOPS OR FACILITIES..." makes that very clear even if it is in the Transitory Provisions.

^[143] Bayan v. Zamora, supra note 69, at 652, stating that:

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.

x x x x
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIU means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty, the VFA in the instant case.

^[144] Constitution, Article VII, Section 21. See also Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), pp. 487-488.

^[145] Constitution, Article XVIII, Section 25.

^[146] Supra note 69.

^[147] Id. at 659.

^[148] Id. at 656-659.

^[149] The Tydings-McDuffie Act, also known as the Philippine Independence Act, was entitled "An Act to Provide for the Complete Independence of the Philippine Islands, to provide for the Adoption of a Constitution and a Form of Government for (he Philippine Islands, and for other purposes." It was signed into law by President Franklin D. Roosevelt on March 24, 1934 and was approved by the Philippine Senate on May 1, 1934. See Encyclopedia Britannica, Tydings-McDuffie Act, available at http:/www.britanica.com/topic/Tydings-McDuffie-Act and http://www.philippine-histoiry.org/tydings-mcduffie-law.htm.

^[150] Tydings-McDuffie Act, Section J.

^[151] Id., Section 10.

^[152] Id., Section 2( 12). See also Ordinance appended to 1935 Constitution, Section 1(12).

^[153] Id., Section 10(b).

^[154] The 1947MBA Whereas Clause, par. 7, states:

THEREFORE, the Governments of the Republic of the Philippines and of the United States of America agree upon the following terms for the delimitation, establishment, maintenance, and operation of military bases in the Philippines.

^[155] 1947 MBA, Article XXIX; see Annexes A and B of the 1947 MBA.

^[156] The 1947 MBA Whereas clause states:

Whereas, the Governments of the Republic of the Philippines and of the United States of America are desirous of cooperating in the common defense of their two countries through arrangements consonant with the procedures and objectives of the United Nations, and particularly through a grant to the United States of America by the Republic of the Philippines in the exercise of its title and sovereignty, of the use, free of rent, in furtherance of the mutual interest of both countries, of certain lands of the public domain; x x x (Emphases supplied)

^[157] 1947 MBA, Whereas Clause, Articles II and 111.

^[158] Id., Articles II, III, IV, VI, and VII.

^[159] Id, Article XXV (1).

^[160] Id, Article XXVII.

^[161] Id., Articles XI, XII. XIII, XIV. and XV.

^[162] The Ramos-Rvsk Agreement of 1966 reduced the term of the 1947 Bases Treaty to a total of 44 years or until 1991.

The Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of 17 U.S. military bases.

The Romulo-Murphy exchange of Notes of 1979 recognized Philippine sovereignty over the Clark and Subic Bases, reduced the area that could be used by the U.S. military, and provided for the mandatory review of the 1947 Bases Treaty every nv2 years.

The Romualdez-Armacast Agreement of 1983 revised the 1947 Bases Treaty, particularly pertaining to the operational use of military/bases by the U.S. government within the context of Philippine sovereignty, 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.

The 1947 Military Assistance Agreement (1947MAA) entered into by the President with the U.S. pursuant to the authority granted under Republic Act No. 9. The Agreement established the conditions under which the U.S. military assistance would be granted to the Philippines, particularly the provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the latter's defense forces.

The 1953 Exchange of Notes Constituting an Agreement Extending the Agreement Between the Government of the Republic of the Philippines and the Government of the United States of America on Military Assistance to the Philippines (1953 Agreement) clarified thai the 1947 Agreement would remain in force until terminated by any of the parties.

^[163] See Romulo-Mnrphy Exchange of Notes of 1979.

^[164] See Official Gazette, Report of President Marcos to the Batasang Pambansa, January 15, 1979.

^[165] Bayan v. Zamora, supra note 69, at 632, which states:

In view of the impending expiration of the RP-U.S. Military Bases Agreement in 1991, the Philippines and the U.S. negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-U.S. Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of U.S. military bases in the Philippines.

^[166] Philippine Communications Satellite Corporation v. Globe Telecom, Inc., 473 Phil. 116, 122 (2004), which states:

On 31 December 1991, the Philippine Government sent a Note Verbale to the U.S. Government through the U.S. Embassy, notifying it of the Philippines' termination of the RP-US Military Bases Agreement. The Note Verbale stated that since the RP-US Military Bases Agreement, as amended, shall terminate on 31 December 1992, the withdrawal of all U.S. military forces from Subic Naval Base should be completed by said date.

^[167] Gerald Anderson. Subic Bay From Magellan to Pinatubo: The History of the US Naval Station, Subic Bay (2006), p. 181. Available at https://books.google.com.ph/books?id=OfPs0NH5EuAC&printsec=frontcover&dq=subic+bay+from+magellan+to+pinatubo&hl-en&sa=X&ved=0ahUKEwjvitrLrNjJAhUBJ5QKHcBICAUQ6AEIJDAA#v=onepage&q=subic%20bay%20from%20magellan%20to%20pinatubo&f=false.

^[168] Bruce Vaughn. "U.S. Strategic and Defense Relationships in the Asia-Pacific Region" U.S. Congressional Research Service Report for Congress (January 22, 2007). Available at https://www.fas.org/sgp/crs/row/RL33821.pdf.

^[169] R. Chuck Mason. "Status of Force-, Agreement (SOFA): What is it, how is it utilized?" U.S. Congressional Research Service Report for Congress (March 15, 2012). Available at https://wvvw.fas.org/sgp/crs/natsec/RL34531.pdf.

^[170] For an illustrated depiction of the increase of U.S. military bases around the world before (1939) and after (1945) World War III, see David Vine, supra note 77, at 32-36.

^[171] See Mason, supra note 169, stating that the U.S. and Germany entered into a supplemental agreement to the NATO SOFA (as provided in 14 U.S.T. 531; T.l.A.S. 5351. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963) and additional exchange ofnol.es related to specific issues (14 U.S.T. 689; T.l.A.S. 5352; 490 U.N.T.S. 30. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963).

Also, the Manila Pact entered into on September 8, 1954 by the U.S., the Philippines, Australia, France, New Zealand, Pakistan, and Thailand, whereby the parties agreed, among others, to: settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations; and separately and jointly, by means of continuous and effective self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack and to prevent and counter subversive activities directed from without against their territorial integrity and political stability. See Southeast Asia Collective Defense Treaty (September 8, 1954). 209 U.N.T.S 28-30. Available at https://treaties.in.org/doc/Publication/UNTS/Volume%20209/v209.pdf.

^[172] For example, the U.S. entered into supplementary agreement with the Federal Republic of Germany (which acceded to the NATO-SOFA in 1963) with respect to allied forces stationed permanently in Germany, see Dieter Fleck, The Handbook of the Law on Visiting Forces (2001), p. 353.

^[173] The 1951 MDT states the Parties' objective "[d]esiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area."

^[174] 1951 MDT, Article II.

^[175] Id., Article III.

^[176] Id., Article IV.

^[177] Id., Article V.

^[178] Id., Article VIII.

^[179] Lim v. Executive Secretary, 430 Phil 555, 562 (2002), which states: These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951.

^[180] See H. Marcos Moderno, "A Decade of US Troops in Mindanao: Revisiting the Visiting Forces Agreement (2)" MindaNews, April 24, 2012, available at http://www.mindanews.com/special-reports/2012/04/24/a-decade-of-us-troops-in-mindanao-revisiting-the-visiting-forces-agreement-2/.

^[181] 1998 VFA, Article V.

^[182] Supra note 69.

^[183] Id. at 652, which states:

On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25. Article XVI11. which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.

^[184] Id. at 657. which states:

This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

^[185] Joaquin Bernas, supra note 144, at S400-1401.

^[186] See Kurt Campbell & Brian Andrews, Explaining the US 'Pivot' to Asia, August 2013, Chatham House, pp.  3-8 Available at https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Americas/0813pp_pivottoasia.pdf

^[187] Id. at 8.

^[188] Ibid.

^[189] EDCA, Preamble, par. 5.

^[190] Id., Article IV, par. 6.

^[191] Id., Article 1.

^[192] Id., Article III.

^[193] Id., Article XII(4).

^[194] V Records, Constitutional Commission 105. (October 11. 1986), which reads:

Mr. Benrtagen: Point of information. ! have with me a book of Patricia M. Paez, The Bases Factor, the authority on US relations. And reference to the agreement reads this way: Agreement between the Republic of the Philippines and the United States of America concerning military bases.

Mr. Azcuna: That is the official title Why do we not use that? After the

expiration of the agreement x x x.

^[195] Ibid.

^[196] Samson Alcantara. Statutes (1997 ed.) at 58; Sec also Ruben Agpalo, Statutory Construction (6^th ed) at 282.

^[197] Ernesto v. Court of Appeals, 216 Phil. 319, 327-328 (1984).

^[198] US Department of Defense, Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms, at 21 (2015), available at .

^[199] Presidential Decree No. 1227, Section 2.

^[200]IV Records, Constitutional Commission 86 (September 18, 1986):

Fr. Bernas: By the term 'bases,' were we thinking of permanent bases?

Mr. Maambona,: Yes.

^[201] US DoD, Strengthening U.S. Global Defense Posture: Report to Congress, U.S. Department of Defense, (2004), pp. 10-11. Available at http://www.dnizhawaii.org/wp-content/uploads/2008/12/global_posture.pdf.

^[202] Andrew Krepinevich and Robert Work. A New Global Defense Posture for the Second Transoceanic Era (2007), p. 19.

^[203] Krepinevich and Work, supra note 201, at 18.

^[204] US DoD, supra note 201, at 10-11.

^[205] Bruno Charbonneau and Wayne Cox. Locating Global Order: American Power and Canadian Security after 9/11 (2010), p. 65.

^[206] Stacie Pettyjohn. "Minimalist International Interventions: For the Future US Overseas Presence, Access Agreement Are Key" Summer 2013, RAND Corporation, available at http://www.rand.org/pubs/periodicals/rand-review/issues/2013/summer/for-the-future-us-overseas-presence.html.

^[207] Id., at 2.

^[208] EDCA, Article III Sec. 1.

^[209] Id., Article V, Section 2.

^[210] Id., Article IV. Sec. 1

^[211] Id.

^[212] Supra note 109, at 653.

In like manner x x x such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.

^[213] EDCA, Article II, Section 2.

^[214] Id., Article III, Section I.

^[215] Id., Article XII, Section 4.

^[216] The senators argued the precise length of time but agreed that it would not exceed six months. See Senate deliberations on P.S. Res. No. 443 - Visiting Forces Agreement, May 17, 1999, Records and Archives Service, Vol. 133, pp. 23-25.

^[217] Ponencia, pp. 48-66.

^[218] 1951 MDT, Preamble, par. 3.

^[219] Supra note 179, at 571-572.

^[220] Ponencia, pp. 54-63.

^[221] Mutual Defense Treaty, U.S.-South Korea, October 1, 1953, 238 U.N.T.S. 202,204. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20238/v238.pdf.

^[222] Mutual Defense Treaty, U.S.-Taiwan, December 10, 1954, 248 U.N.T.S. 214. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20248/v238.pdf.

^[223] Treaty of Mutual Co-operation and Security, U.S.-Japan, January 19, 1960, 373 U.N.T.S. 188. Available at https://treaties.un.org/doc/Publication/UNTS/Volume%20373/v373.pdf.

^[224] The US-Taiwan MDT states that self-help and mutual aid will be utilized by the Parties to resist not only an armed attack but also "communist subversive activities directed against Taiwan's territorial integrity and political stability." Moreover, the US-Korean Treaty adds the phrase "whenever, in the opinion of either of them, the political independence or security of either of the Parties is threatened by external armed attack" and uses the phrase "means to deter [an] armed attack") instead of "maintain and develop x x x their capacities to resist armed attack."

^[225] Mutual Defense Treaty, U.S.-South Korea, supra note 221.

^[226] Mutual Defense Treaty, U.S.-Taiwan, supra note 222.

^[227] Treaty of Mutual Co-operation and Security. U.S.-Japan, supra note 223.

^[228] 1998 VFA, Article 111(1).

^[229] Bayan v. Zamora, supra note 69. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.

^[230] ibid.

^[231] Supra note 179, at 572.

^[232] 1998 VFA, Preamble, par. 4.

^[233] Lim v. Executive Secretary, supra note 179, at 575. 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 nations marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action project's such as the building of school houses, medical and humanitarian missions, and the like.

^[234] EDCA, Article 11(4).

^[235] Id., Article 111(1).

^[236] Id., Article 1(3).

^[237] Ibid.

^[238] Id., Article III(1).

^[239]
Ibid

^[240] Ibid

^[241] Id., Article VI1(2).

^[242] Id., Article IV(l), (3).

^[243] Ponencia, pp. 50-51.

^[244] Ibid.

^[245] Senate deliberations, May 25, 1999, A.M., p. 17, which reads:

Senator Tatad. x x x Mr. President, distinguished colleagues, the Visiting Forces Agreement does not create a new policy or a new relationship. It simply seeks to implement and reinforce what already exists.

For that purpose, an executive agreement might have sufficed, were there no constitutional constraints. But the Constitution requires the Senate to concur in all international agreements. So the Senate must concur in the Visiting Forces Agreement, even if the U.S. Constitution does not require the U.S. Senate to give its advice and consent.

^[246] Senate Resolution No. 1414, supra note 107.

^[247] During the latter part of the Coki War, the term "facilities" was frequently substituted for the word "bases" to soften the negative political overtones normally associated with the basing of foreign troops in a sovereign country. In line with this thinking, the Stockholm International Peace Research Institute uses the term foreign military presence (FMP) to describe bases/facilities that house foreign troops in a sovereign state. See Krepinevich and Work, supra note 202.

^[248] Strengthening U.S. Global Defense Posture: Report to Congress, supra note 201.

^[249] Ibid.

^[250] See Jose Gomez del Prado. Privitization of War: Mercenaries, Private Military and Security Companies, Global Research, November 8, 2010. Available at http://www.globalresearch.ca/the-privitazation-of-war-mercenaries-private-military-and-security-companies-pmsc/21826.

---

DISSENTING OPINION



LEONEN, J.:

1987 Constitution, Article XVIII, 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.

In a disturbing turn of events, the majority of this court just succeeded in amending this constitutional provision. At the very least, it emasculated its text and weakened its spirit.

An agreement signed by our Secretary of Defense and the Ambassador of the United States that grants United States military personnel and their contractors operational control over unspecified locations within Philippine territory in order to pre-position military equipment as well as to use as launching pads for operations in various parts of the globe is not binding until it is concurred in by the Senate. This is in accordance with Article XVIII, Section 25 and Article VII, Section 21 of the Constitution.

Furthermore, the Enhanced Defense Cooperation Agreement (EDCA) does not simply implement the Agreement Between the Government of the United States of America and the Government of the Republic of the Philippines Regarding the Treatment of United States Armed Forces Visiting the Philippines (Visiting Forces Agreement or VFA). The EDCA substantially modifies or amends the VFA. An executive agreement cannot amend a treaty. Nor can any executive agreement amend any statute, most especially a constitutional provision.

The EDCA substantially modifies or amends the VFA in the following aspects:

First, the EDCA does not only regulate the "visits" of foreign troops. It also allows the temporary stationing on a rotational basis of US military personnel and their contractors in physical locations with permanent facilities and pre-positioned military materiel.

Second, unlike the VFA, the EDCA allows pre-positioning 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.

Third, the VFA contemplates the entry of troops for various training exercises. The EDCA allows our territory to be used by the United States to launch military and paramilitary operations to be conducted within our territory or against targets in other states.

Fourth, the EDCA introduces the following concepts not contemplated in the VFA or in the 1951 Mutual Defense Treaty, namely: (a) agreed locations; (b) contractors; (c) pre-positioning of military materiel; and (d) operational control.

Lastly, the VFA does not have provisions that may be construed as a restriction or modification of obligations found in existing statutes. The EDCA contains provisions that may affect various statutes, including (a) the jurisdiction of courts, (b) local autonomy, and (c) taxation.

There is no showing that the new matters covered in the EDCA were contemplated by the Senate when it approved the VFA. Senate Resolution No. 105, Series of 2015, which expresses the sentiment of that legislative chamber, is a definite and unequivocal articulation of the Senate: the VFA was not intended to cover the matters now included in the EDCA. In the view of the Senate reading the same provisions of the Constitution as we do, the EDCA should be in treaty form.

The EDCA, in its current form, is only an official and formal memorial of agreed provisions resulting from the negotiations with the United States. The President has the discretion to submit the agreement to the Senate for concurrence. The EDCA is a treaty and requires Senate concurrence.

I
The EDCA should comply with Article XVIII, Section 25 of the Constitution.

Bayan v. Zamora^[2] interpreted the scope of this provision when it discussed the constitutionality of the VFA. Similar to the EDCA, the VFA was a product of negotiations between the two governments relating to mutual security interests. Unlike the EDCA, however, the VFA was submitted to the Senate for concurrence, thus:

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino, Jr., to exchange notes on "the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted [in] a final series of conferences and negotiations that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Bias F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 recommending the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard.^[3] (Citations omitted)

Bayan held that Article XVIII, Section 25 of the Constitution applies to the VFA:

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty — the VFA, in the instant case — be "duly concurred in by the Senate," it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two-thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to Section 21, Article VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty — the VFA in the instant case.
. . . .

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.
. . . .

This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.^[4]

Lim v. Executive Secretary^[5] further explored the scope of the VFA as it dealt with the constitutionality of the Terms of Reference of the "Balikatan 02-1" joint military exercises between the Philippines and the United States:

The Terms of Reference rightly fall within the context of the VFA.

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

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the 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.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1," the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory.^[6] (Emphasis supplied)

Nicolas v. Romulo^[7] involved the grant of custody of Lance Corporal Daniel Smith to the United States pursuant to the VFA and reiterated the ruling in Bayan:

[A]s an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case-Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.^[8]

The controversy now before us involves more than the VFA. Reading the entirety of the Constitution is necessary to fully appreciate the context of the interpretation of Article XVIII, Section 25.

II
Foreign policy indeed includes security alliances and defense cooperation among states. In the conduct of negotiations and in the implementation of any valid and binding international agreement, Article II of the Constitution requires:

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
. . . .

Section 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

Article 2(4) of the Charter of the United Nations similarly provides that "[a] 11 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."^[9]

Our use of force is not completely proscribed as the Charter of the United Nations provides for the inherent right of individual or collective self-defense:

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
. . . .

Article 51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defen[s]e if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defen[s]e shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.^[10]

Furthermore, falling within the penumbra on the use of force are pre-emptive self-defense,^[11] self-help, and humanitarian interventions.^[12]

Another exception would be the collective security system set up under the Charter of the United Nations, with the Security Council acting in accordance with Chapter VII of the Charter. Under Article 42:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.^[13]

We fall within this exception when we participate in the enforcement of the resolutions of the Security Council.^[14]

Generally, the President's discretion is plenary in matters falling within executive functions. He is the chief executive,^[15] having the power of control over all executive departments, bureaus, and offices.^[16] Further, "by constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country [and] [i]n many ways, the President is the chief architect of the nation's foreign policy."^[17]

The President is also the Commander-in-Chief of all armed forces of the Philippines.^[18] He has the power to "call out such armed forces to prevent or suppress lawless violence, invasion or rebellion . . . suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law"^[19] subject to the conditions and requisites under the provision.

However, the President's discretion to allow our participation in the use of force—whether by committing our own military assets and personnel or by allowing our territory to be used as waypoints, refueling or staging areas—is also constrained by the Constitution. In this sense, the power of the President as Commander-in-Chief and head of state is limited by the sovereign through judicially determinable constitutional parameters.

III
With respect to the use of or threat to use force, we can discern a gradation of interrelations of the legislative and executive powers to ensure that we pursue "an independent foreign policy" in the context of our history.

Article VI, Section 23 of the Constitution covers declarations of a state of war. It is vested solely in Congress, thus:

Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

Informed by our history and to ensure that the independence of our foreign policy is not compromised by the presence of foreign bases, troops, or facilities, the Constitution now provides for treaty recognition, Senate concurrence, and public ratification when required by Congress through Article XVIII, Section 25, thus:

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.

The prohibition in Article XVIII, Section 25 relates only to international agreements involving foreign military bases, troops, or facilities. It does not prohibit the President from entering into other types of agreements that relate to other aspects of his powers as Commander-in-Chief.

In Bayan:

Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.
. . . .

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.^[20] (Emphasis supplied)

"Foreign military bases, troops, and facilities" should not be read together but separately. Again, in Bayan:

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient" and "permanent." Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not distinguish—Ubi lex non distinguit nee nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops or facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration, such that, the provision contemplates three different situations — a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities — any of the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:

"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into such kind of a treaty, must it cover the three—bases, troops or facilities—or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirements will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything."

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

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.^[21] (Citations omitted)

The ponencia, among others, interprets "shall not be allowed" as being limited to the "initial entry" of bases, troops, or facilities.^[22] Subsequent acts are treated as no longer being subject to Article XVIII, Section 25 and are, therefore, only limited by other constitutional provisions and relevant laws.^[23]

This interpretation is specious and ahistorical.

There is nothing in Article XVIII, Section 25 that defines the extent and scope of the presence of foreign military bases, troops, or facilities, thereby justifying a distinction between their initial entry and subsequent activities. Its very structure shows that Article XVIII, Section 25 is not a mere gateway for the entry of foreign troops or facilities into the Philippines for them to carry out any activity later on.

The provision contains measures designed to protect our country in the broader scheme of international relations. Military presence shapes both foreign policy and political relations. War—or the threat thereof through the position of troops, basing, and provision of military facilities—is an extension of politic, thus:

The use of military force is a means to a higher end—the political object. War is a tool that policy uses to achieve its objectives and, as such, has a measure of rational utility. So, the purpose for which the use of force is intended will be the major determinant of the course and character of a war. As Clausewitz explains, war "is controlled by its political object," which "will set its course, prescribe the scale of means and effort which is required, and makes its influence felt throughout down to the smallest operational detail.^[24]

With respect to the entry and presence of foreign military bases, troops, and facilities, Article XVIII, Section 25 of the 1987 Constitution enables government to politically negotiate with other states from a position of equality. The authority is not exclusively granted to the President. It is shared with the Congress. The Senate participates because no foreign base, troop, or facility may enter unless it is authorized by a treaty.

There is more evidence in the text of the provision of a sovereign intent to require conscious, deliberate, and public discussion regarding these issues.

The provision gives Congress, consisting of the Senate and the House of Representatives, the option to require that the treaty become effective only when approved by a majority of the people in a referendum. Furthermore, there is the additional requirement that the authority will be absent if the other state does not treat the same instrument that allows their bases, troops, and facilities to enter our territory as a treaty.

The provision ensures equality by requiring a higher level of public scrutiny. Unlike in the past when we bargained with the United States from a position of weakness, the Constitution opens the legislative forum so that we use the freedoms that we have won since 1946 to ensure a fair agreement. Legislative hearings make the agreements more publicly legible. They allow more criticism to be addressed. Public forums clarify to the United States and other foreign military powers interested in the Philippines the full extent of interest and the various standpoints of our different constituents. As a mechanism of public participation, it also assures our treaty partners of the durability of the various obligations in these types of security arrangements.

The EDCA was negotiated in private between representatives of the President and the United States. The complete text of the negotiations was presented to the public in time for the visit of the President of the United States. During its presentation, the President's representatives took the position that no further public discussion would be held that might affect the terms of the EDCA. The President presented the EDCA as a final product withdrawn from Senate or Congressional input. The President curtailed even the possibility of full public participation through a Congressional Resolution calling for a referendum on this matter.

The Separate Opinion of former Chief Justice Puno in Bayan provides a picture of how the Constitutional Commission recognized the lopsided relationship of the United States and the Philippines despite the 1951 Mutual Defense Treaty and the 1947 Agreement Between the United States of America and the Republic of the Philippines Concerning Military Bases (1947 Military Bases Agreement):

To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the Constitution, it is necessary to ascertain the intent of the framers of the Constitution as well as the will of the Filipino people who ratified the fundamental law. This exercise would inevitably take us back to the period in our history when U.S. military presence was entrenched in Philippine territory with the establishment and operation of U.S. Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military Bases Agreement. As articulated by Constitutional Commissioner Bias F. Ople in the 1986 Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere executive agreement. This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty. Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the commission emerged that this anomalous asymmetry must never be repeated. To correct this historical aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and facilities should also be "recognized as a treaty by the other contacting party." In plain language, recognition of the United States as the other contracting party of the VFA should be by the U.S. President with the advice and consent of the U.S. Senate.

The following exchanges manifest this intention:

"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there anything in this formulation, whether that of Commissioner Bernas or of Commissioner Romulo, that will prevent the Philippine government from abrogating the existing bases agreement?

FR. BERNAS. To my understanding, none.

MR. ROMULO. I concur with Commissioner Bernas.

MR. OPLE. I was very keen to put this question because I had taken the position from the beginning — and this is embodied in a resolution filed by Commissioners Natividad, Maambong and Regalado — that it is very important that the government of the Republic of the Philippines be in a position to terminate or abrogate the bases agreement as one of the options . . . . we have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this and therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the government of our country will deem it in the national interest to terminate this agreement or even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement. . .

MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care of Commissioner Ople's concerns.

The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be renegotiated, it must be under the terms of a new treaty. The second is the concluding phrase which says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."
. . . .

MR. SUAREZ. Is the proposal prospective and not retroactive in character?

FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present agreement. However, if a decision should be arrived at that the present agreement is invalid, then even prior to 1991, this becomes operative right away.

MR. SUAREZ. In other words, we do not impress the previous agreements with a valid character, neither do we say that they are null and void ab initio as claimed by many of us here.

FR. BERNAS. The position I hold is that it is not the function of this Commission to pass judgment on the validity or invalidity of the subsisting agreement.

MR. SUAREZ ... the proposal requires recognition of this treaty by the other contracting nation. How would that recognition be expressed by that other contracting nation? That is in accordance with their constitutional or legislative process, I assume.

FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties.

FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for the agreement to reach the status of a treaty under their jurisdiction"^[25] (Emphasis supplied)

By allowing the entry of United States military personnel, their deployment into undefined missions here and abroad, and their use of military assets staged from our territory against their present and future enemies based on a general provision in the VFA, the majority now undermines the measures built into our present Constitution to allow the Senate, Congress and our People to participate in the shaping of foreign policy. The EDCA may be an agreement that "deepens defense cooperation"^[26] between the Philippines and the United States. However, like the 1947 Military Bases Agreement, it is the agreement more than any other that will extensively shape our foreign policy.

IV
Article VII, Section 21 of the Constitution complements Article XVIII, Section 25 as it provides for the requisite Senate concurrence, thus:

Section 21. 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 provision covers both "treaty and international agreement." Treaties are traditionally understood as international agreements entered into between states or by states with international organizations with international legal personalities.^[27] The deliberate inclusion of the term "international agreement" is the subject of a number of academic discussions pertaining to foreign relations and international law. Its addition cannot be mere surplus. Certainly, Senate concurrence should cover more than treaties.

That the President may enter into international agreements as chief architect of the Philippines' foreign policy has long been acknowledged.^[28] However, whether an international agreement is to be regarded as a treaty or as an executive agreement depends on the subject matter covered by and the temporal nature of the agreement.^[29] Commissioner of Customs v. Eastern Sea Trading^[30] differentiated international agreements that require Senate concurrence from those that do not:

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.^[31] (Emphasis in the original)

Indeed, the distinction made in Commissioner of Customs in terms of international agreements must be clarified depending on whether it is viewed from an international law or domestic law perspective. Dean Merlin M. Magallona summarizes the differences between the two perspectives:

From the standpoint of Philippine constitutional law, a treaty is to be distinguished from an executive agreement, as the Supreme Court has done in Commissioner of Customs v. Eastern Sea Trading where it declares that "the concurrence of [the Senate] is required by our fundamental law in the making of 'treaties' . . . which are, however, distinct and different from 'executive agreements,' which may be validly entered into without such concurrence."

Thus, the distinction rests on the application of Senate concurrence as a constitutional requirement.

However, from the standpoint of international law, no such distinction is drawn. Note that for purposes of the Vienna Convention on the Law of Treaties, in Article 2(1)(a) the term "treaty" is understood as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." . . . The Philippines is a party to the Convention which is already in force. In the use of the term "treaty," Article 2(1 )(a) of the Vienna Convention on the Law of Treaties between States and International Organizations, which is not yet in force, the designation or appellation of the agreement also carries no legal significance. Provided the instruments possess the elements of an agreement under international law, they are to be taken equally as "treaty" without regard to the descriptive names by which they are designated, such as "protocol," "charter," "covenant," "exchange of notes," "modus vivendi," "convention," or "executive agreement."^[32] (Emphasis supplied, citations omitted)

Under Article 2(2)^[33] of the Vienna Convention on the Law of Treaties, in relation to Article 2(1 )(a),^[34] the designation and treatment given to an international agreement is subject to the treatment given by the internal law of the state party.^[35] Paragraph 2 of Article 2 specifically safeguards the states' usage of the terms "treaty" and "international agreement" under their internal laws.^[36]

Within the context of our Constitution, the requirement for Senate concurrence in Article VII, Section 21 of the Constitution connotes a special field of state policies, interests, and issues relating to foreign relations that the Executive cannot validly cover in an executive agreement:

As stated above, an executive agreement is outside the coverage of Article VII, Section 21 of the Constitution and hence not subject to Senate concurrence. However, the demarcation line between a treaty and an executive agreement as to the subject-matter or content of their coverage is ill-defined. The courts have not provided reliable guidelines as to the scope of executive-agreement authority in relation to treaty-making power.

If executive-agreement authority is un-contained, and if what may be the proper subject-matter of a treaty may also be included within the scope of executive-agreement power, the constitutional requirement of Senate concurrence could be rendered meaningless. The requirement could be circumvented by an expedient resort to executive agreement.

The definite provision for Senate concurrence in the Constitution indomitably signifies that there must be a regime of national interests, policies and problems which the Executive branch of the government cannot deal with in terms of foreign relations except through treaties concurred in by the Senate under Article VII, Section 21 of the Constitution. The problem is how to define that regime, i.e., that which is outside the scope of executive-agreement power of the President and which exclusively belongs to treaty-making as subject to Senate concurrence.^[37] (Emphasis supplied)

Thus, Article VII, Section 21 may cover some but not all types of executive agreements. Definitely, the determination of its coverage does not depend on the nomenclature assigned by the President.

Executive agreements are international agreements that pertain to mere adjustments of detail that carry out well-entrenched national policies and traditions in line with the functions of the Executive. It includes enforcement of existing and valid treaties where the provisions are clear. It involves arrangements that are of a temporary nature. More importantly, it does not amend existing treaties, statutes, or the Constitution.

In contrast, international agreements that are considered treaties under our Constitution involve key political issues or changes of national policy. These agreements are of a permanent character. It requires concurrence by at least two-thirds of all the members of the Senate.

Even if we assume that the EDCA's nomenclature as an "executive agreement" is correct, it is still the type of international agreement that needs to be submitted to the Senate for concurrence. It involves a key political issue that substantially alters or reshapes our national and foreign policy.

Fundamentally however, the President's classification of the EDCA as a mere "executive agreement" is invalid. Article XVIII Section 25 requires that the presence of foreign troops, bases, and facilities must be covered by an internationally binding agreement in the form of a treaty concurred in by the Senate.

V
The Solicitor General, on behalf of government, proposes that we should view the EDCA merely as an implementation of both the Mutual Defense Treaty and the VFA. In his view, since both the Mutual Defense Treaty and the VFA have been submitted to the Senate and concurred in validly under the governing constitutional provisions at that time, there is no longer any need to have an implementing agreement similarly submitted for Senate concurrence.

The Chief Justice, writing for the majority of this court, agrees with the position of the Solicitor General.

I disagree.

The proposal of the Solicitor General cannot be accepted for the following reasons: (1) the Mutual Defense Treaty, entered into in 1951 and ratified in 1952, cannot trump the constitutional provision Article XVIII, Section 25; (2) even the VFA, which could have been also argued as implementing the Mutual Defense Treaty, was presented to the Senate for ratification; (3) the EDCA contains significant and material obligations not contemplated by the VFA; and (4) assuming arguendo that the EDCA only provides the details for the full implementation of the VFA, Article XVIII, Section 25 still requires that it at least be submitted to the Senate for concurrence, given the history and context of the constitutional provision.

VI
The 1951 Mutual Defense Treaty cannot be the treaty contemplated in Article XVIII, Section 25. Its implementation through an executive agreement, which allows foreign military bases, troops, and facilities, is not enough. If the Mutual Defense Treaty is the basis for the EDCA as a mere executive agreement, Article XVIII, Section 25 of the Constitution will make no sense. An absurd interpretation of the Constitution is no valid interpretation.

The Mutual Defense Treaty was entered into by representatives of the Philippines and the United States on August 30, 1951 and concurred in by the Philippine Senate on May 12, 1952. The treaty acknowledges that this is in the context of our obligations under the Charter of the United Nations. Thus, Article I of the Mutual Defense Treaty provides:

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

Further, the treaty expresses the desire of the parties to "maintain and develop their individual and collective capacity to resist armed attack." Thus, in Article III of the Treaty:

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.

While these provisions in the 1951 Mutual Defense Treaty could reasonably be interpreted to include activities done jointly by the Philippines and the United States, nothing in International Law nor in the Constitution can be reasonably read as referring to this treaty for the authorization for "foreign military bases, troops, or facilities" after the ratification of the 1987 Constitution.

Again, the constitutional provision reads:

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. (Emphasis supplied)

There is a time stamp to the obligation under this provision. The prohibition against "foreign military bases, troops, or facilities," unless covered by treaty or allowed through a referendum, becomes effective "after the expiration in 1991 of the Agreement . . . concerning Military Bases." The treaty about to expire refers to the 1947 Military Bases Agreement as amended. This was still in effect at the time of the drafting, submission, and ratification of the 1987 Constitution.

The constitutional timeline is unequivocal.

The 1951 Mutual Defense Treaty was in effect at the time of the ratification of the Constitution in 1987. It was also in effect even after the expiration of the Military Bases Agreement in 1991. We could reasonably assume that those who drafted and ratified the 1987 Constitution were aware of this legal situation and of the broad terms of the 1951 treaty yet did not expressly mention the 1951 Mutual Defense Treaty in Article XVIII, Section 25. We can conclude, with sturdy and unassailable logic, that the 1951 treaty is not the treaty contemplated in Article XVIII, Section 25.

Besides, the Executive also viewed the VFA as an implementation of the 1951 Mutual Defense Treaty. Yet, it was still submitted to the Senate for concurrence.

Parenthetically, Article 62 of the Vienna Convention on the Law of Treaties^[38] provides for the principle of "rebus sic stantibus," in that a fundamental change of circumstances may be a ground to terminate or withdraw from a treaty.^[39] Dean Merlin M. Magallona is of the view that there has been a fundamental change in circumstances that allows the Philippines to terminate the 1951 Mutual Defense Treaty.^[40] Although we should acknowledge this suggestion during the oral arguments by petitioners, we do not need to go into such an issue and at this time to be able to resolve the controversies in this case. We await a case that will provide a clearer factual backdrop properly pleaded by the parties.

In addition, the Mutual Defense Treaty is not the treaty contemplated by Article XVIII, Section 25 on account of its subject matter. In Paragraph 5 of its Preamble, the Mutual Defense Treaty articulates the parties' desire "to strengthen their present efforts to collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area." Article II further clarifies the treaty's purpose:

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. (Emphasis supplied)

Clearly, none of its provisions provide specifically for the presence of a base, troops, or facilities that will put it within the ambit of Article XVIII, Section 25. Its main aim is to provide support against state enemies effectively and efficiently. Thus, for instance, foreign military bases were covered in the 1947 Military Bases Agreement.

The VFA cannot also be said to be the treaty required in Article XVIII, Section 25. This is because the United States, as the other contracting party, has never treated it as such under its own domestic laws. The VFA has the same status as that of the 1947 Military Bases Agreement in that it is merely an executive agreement on the part of United States:

As articulated by Constitutional Commissioner Bias F. Ople in the 1986 Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere executive agreement. This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty.^[41] (Emphasis supplied)

In Nicolas, Associate Justice Antonio T. Carpio himself underscored the non-treaty status of the Visiting Forces Agreement in light of Medellin v. Texas^[42] in his Separate Opinion, thus:

Under Medellin, the VFA is indisputably not enforceable as domestic federal law in the United States. On the other hand, since the Philippine Senate ratified the VFA, the VFA constitutes domestic law in the Philippines. This unequal legal status of the VFA violates Section 25, Article XVIII of the Philippine Constitution, which specifically requires that a treaty involving the presence of foreign troops in the Philippines must be equally binding on the Philippines and on the other contracting State.

In short, the Philippine Constitution bars the efficacy of such a treaty that is enforceable as domestic law only in the Philippines but unenforceable as domestic law in the other contracting State. The Philippines is a sovereign and independent State. It is no longer a colony of the United States. This Court should not countenance an unequal treaty that is not only contrary to the express mandate of the Philippine Constitution, but also an affront to the sovereignty, dignity and independence of the Philippine State.

There is no dispute that Section 25, Article XVIII of the Philippine Constitution governs the constitutionality of the VFA. Section 25 states:

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.

The clear intent of the phrase "recognized as a treaty by the other contracting State" is to insure that the treaty has the same legal effect on the Philippines as on the other contracting State. This requirement is unique to agreements involving the presence of foreign troops in the Philippines, along with the requirement, if Congress is so minded, to hold a national referendum for the ratification of such a treaty.

The deliberations of the Constitutional Commission reveal the sensitivity of the framers to the "unacceptable asymmetry" of the then existing military bases agreement between the Philippines and the United States. The Philippine Senate had ratified the military bases agreement but the United States Government refused to submit the same to the U.S. Senate for ratification. Commissioner Bias Ople explained this "unacceptable asymmetry" in this manner:

. . . But I think we have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this and, therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the government of our country will deem it in the national interest to terminate this agreement or even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement. I think that is a very important point. I am glad to be reassured by the two Gentlemen that there is nothing in these proposals that will bar the Philippine government at the proper time from exercising the option of abrogation or termination.

Eventually, the Constitutional Commission required that any agreement involving the presence of foreign troops in the Philippines must be "recognized as a treaty by the other contracting State." This means that the other contracting State must recognize the agreement as a treaty, as distinguished from any other agreement, and if its constitutional processes require, submit the agreement to its proper legislative body for ratification as a treaty. As explained by Commissioner Father Joaquin Bernas, S.J., during the deliberations of the Constitutional Commission:

Third, on the last phrase "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING NATION," we enter into a treaty and we want the other contracting party to respect that document as a document possessing force in the same way that we respect it. The present situation we have is that the bases agreement is a treaty as far as we are concerned, but it is only an executive agreement as far as the United States is concerned, because the treaty process was never completed in the United States because the agreement was not ratified by the Senate.

So, for these reasons, I oppose the deletion of this section because, first of all, as I said, it does not prevent renegotiation. Second, it respects the sovereignty of our people and the people will be in a better position to judge whether to accept the treaty or not, because then they will fl be voting not just on an abstraction but they will be voting after examination of the terms of the treaty negotiated by our government. And third, the requirement that it be recognized as a treaty by the other contracting nation places us on the same level as any other contracting party.

The following exchanges in the Constitutional Commission explain further the meaning of the phrase "recognized as a treaty by the other contracting State":

FR. BERNAS: Let me be concrete, Madam President, in our circumstances. Suppose they were to have this situation where our government were to negotiate a treaty with the United States, and then the two executive departments in the ordinary course of negotiation come to an agreement. As our Constitution is taking shape now, if this is to be a treaty at all, it will have to be submitted to our Senate for its ratification. Suppose, therefore, that what was agreed upon between the United States and the executive department of the Philippines is submitted and ratified by the Senate, then it is further submitted to the people for its ratification and subsequently, we ask the United States: "Complete the process by accepting it as a treaty through ratification by your Senate as the United States Constitution requires," would such an arrangement be in derogation of sovereignty?

MR. NOLLEDO: Under the circumstances the Commissioner just mentioned, Madam President, on the basis of the provision of Section 1 that "sovereignty resides in the Filipino people," then we would not consider that a derogation of our sovereignty on the basis and expectation that there was a plebiscite.

xxx     xxx     xxx
FR. BERNAS: As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties.

MR. SUAREZ: Thank you for the clarification.

Under the 1935 Constitution, if I recall it correctly, treaties and agreements entered into require an exchange of ratification. I remember that is how it was worded. We do not have in mind here an exchange of ratification by the Senate of the United States and by the Senate of the Philippines, for instance, but only an approval or a recognition by the Senate of the United States of that treaty.

FR. BERNAS: When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for that agreement to reach the status of a treaty under their jurisdiction.

Thus, Section 25, Article XVIII of the Philippine Constitution requires that any agreement involving the presence of foreign troops in the Philippines must be equally legally binding both on the Philippines and on the other contracting State. This means the treaty must be enforceable under Philippine domestic law as well as under the domestic law of the other contracting State. Even Justice Adolfo S. Azcuna, the ponente of the majority opinion, and who was himself a member of the Constitutional Commission, expressly admits this when he states in his ponencia:

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation where the terms and conditions governing the presence of foreign armed forces in our territory were binding on us but not upon the foreign State.

An "equally binding" treaty means exactly what it says — the treaty is enforceable as domestic law in the Philippines and likewise enforceable as domestic law in the other contracting State.^[43] (Emphasis in the original, citations omitted)

Surprisingly, through his Concurring Opinion in this case, Associate Justice Carpio has now abandoned his earlier views.

This court's interpretation of a treaty under Article XVIII, Section 25 in Bayan, which did away with the requirement that the agreement be recognized as a treaty by the other contracting party, has resulted in an absurd situation of political asymmetry between the United States and the Philippines. A relationship where both parties are on equal footing must be demanded, and from one state to another. The Philippine government must be firm in requiring that the United States establish stability in its international commitment, both by legislation and jurisprudence.

The doctrine laid down in Bayan, insofar as the VFA is concerned, should now be revisited in light of new circumstances and challenges in foreign policy and international relations.

VII
Even if we assume that the Mutual Defense Treaty and the VFA are the treaties contemplated by Article XVIII, Section 25 of the Constitution, this court must determine whether the EDCA is a valid executive agreement as argued by respondents.

It is not. The EDCA modifies these two agreements.

Respondents claim that the EDCA is an executive agreement and merely implements the Mutual Defense Treaty and VFA.^[44] In arguing that the EDCA implements the Mutual Defense Treaty, respondents state that the latter has two operative principles: (1) the Principle of Defensive Reaction under Article IV;^[45] and (2) the Principle of Defensive Preparation under Article II.^[46] According to respondents, "[t]he primary concern of the EDCA is the Principle of Defensive Preparation in order to enhance both parties' abilities, if required, to operationalize the Principle of Defensive Reaction."^[47] The specific goals enumerated in the EDCA demonstrate this:

56. The specific purposes of the EDCA-to "[s]upport the Parties' shared goal of improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), [to address its] short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities" properly fall within the MDT's objective of developing the defense capabilities of the Philippines and the US. The EDCA implements the MDT by providing for a mechanism that promotes optimal cooperation between the US and the Philippines.^[48]

Similarly, respondents allege that the EDCA implements the VFA in relation to the entry of United States troops and personnel, importation and exportation of equipment, materials, supplies, and other property, and movement of vessels and aircraft in the Philippines.^[49] Respondents rely on this court's pronouncement in Lim that combat-related activities are allowed under the VFA:

61. Article I of the EDCA provides that its purposes are to support "the Parties' shared goal of improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), [to address its] short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities."

62. The Honorable Court in Lim ruled that these activities are already covered by the VFA. Under Lim, "maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities" are activities that are authorized to be undertaken in the Philippines under the VFA.

63. Article II of the EDCA reiterates the definition of "United States personnel" in the VFA which means "United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippines."

64. Article III of the EDCA provides for the "Agreed Locations" where the Philippines authorizes US 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."

65. Article IV of the EDCA authorizes the prepositioning and storing of defense equipment, supplies and materiel. Under Article IV in relation to Article III of the EDCA, the "prepositioning of equipment, supplies and materiel" is an "activity" to be approved by the Philippine Government "through bilateral security mechanisms, such as the MDB and SEB."

66. In sum, what the EDCA does is to enhance the existing contractual security apparatus between the Philippines and the US, set up through the MDT and the VFA. It is the duty of the Honorable Court to allow this security apparatus enough breathing space to respond to perceived, anticipated, and actual exigencies.

As discussed earlier, an executive agreement merely provides for the detailed adjustments of national policies or principles already existing in other treaties, statutes, or the Constitution. It involves only the enforcement of clear and specific provisions of the Constitution, law, or treaty. It cannot amend nor invalidate an existing statute, treaty, or provision in the Constitution. It includes agreements that are of a temporary nature.

This is not the case with the EDCA.

The EDCA contains significant and material obligations not contemplated by the VFA. As an executive agreement, it cannot be given any legal effect. The EDCA substantially modifies and amends the VFA in at least the following aspects:

First, the EDCA does not only regulate the "visits" of foreign troops. It allows the temporary stationing on a rotational basis of United States military personnel and their contractors on physical locations with permanent facilities and pre-positioned military materiel.

Second, unlike the VFA, the EDCA allows the pre-positioning of military materiel, which can include various types of warships, fighter planes, bombers, land and amphibious vehicles, and their corresponding ammunition.

Third, the VFA contemplates the entry of troops for various training exercises. The EDCA allows our territory to be used by the United States to launch military and paramilitary operations conducted in other states.

Fourth, the EDCA introduces new concepts not contemplated in the VFA, namely: (a) agreed locations; (b) contractors; (c) pre-positioning of military materiel; and (d) operational control.

Lastly, the VFA did not have provisions that may have been construed as a restriction or modification of obligations found in existing statutes. The EDCA contains provisions that may affect various statutes including, among others, (a) the jurisdiction of courts, (b) local autonomy, and (c) taxation.

VIII
Article 1(1 )(b) of the EDCA authorizes United States forces access to "Agreed Locations" in the Philippines on a rotational basis.^[50] Even while the concept of "rotation" may refer to incidental and transient presence of foreign troops and contractors, the nature of the "Agreed Locations" is eerily similar to and, therefore, amounts to basing agreements.

"Agreed Locations" has been defined by the EDCA in Article 11(4) as:

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 agreements. (Emphasis supplied)

As treaties, the 1947 Military Bases Agreement and its various amendments specified the actual location of the physical locations of United States troops and facilities. The EDCA, however, now delegates the identification of the location not to a select Senate Committee or a public body but simply to our military representatives in the Mutual Defense Board and the Security Enhancement Board.

More importantly, the extent of access and use allowed to United States forces and contractors under the EDCA is broad. It is set out in Article III:

Article III

Agreed Locations

1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering Of vessels; temporary maintenance of vehicles, vessels, arid 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.
   
   
2. When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields).
   
   
3. Given the mutuality of benefits, the Parties agree that the Philippines shall make Agreed Locations available to United States forces without rental or similar costs. United States forces shall cover their necessary operation expenses with respect to their activities at the Agreed Locations.
   
   
4. The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations. United States forces shall consult on issues regarding such construction; alterations, and improvements on the Parties' shared intent that the technical requirements and construction standards of any such projects undertaken by or on behalf of United States forces should be consistent with the requirements and standards of both Parties.

. . . .

6. United States forces shall be responsible on the basis of proportionate use for construction, development, operation, and maintenance costs at Agreed Locations. Specific funding arrangements may be fined in Implementing arrangements. (Emphasis supplied)

Parsing the provisions carefully, we find that the Agreed Locations may be used for:

(1) training;

(2) transit;

(3) support and related activities;

(4) refueling of aircraft;

(5) bunkering of vessels;

(6) temporary maintenance of vehicles, vessels, and aircraft;

(7) temporary accommodation of personnel;

(8) communications;

(9) pre-positioning of equipment, supplies, and materiel;

(10) deploying forces and materiel; and

(11) other activities as the parties may agree.

There is no hierarchy among these activities. In other words, functions (2) to (11) need not be supportive only of training or transit. Function (10), which pertains to deployment of United States forces and materiel, can be done independently of whether there are training exercises or whether the troops are only in transit.

The permission to do all these activities is explicit in the EDCA. Government has already authorized and agreed that "United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces" may conduct all these activities. Carefully breaking down this clause in Article 111(1) of the EDCA, the authorization is already granted to:

(a) "United States forces";

(b) "United States contractors"; and

(c) "vehicles, vessels, and aircraft operated by or for United States forces."

United States military forces will not only be allowed to "visit Philippine territory to do a transient military training exercise with their Philippine counterparts. They are also allowed to execute, among others, the following scenarios:

One: Parts of Philippine territory may be used as staging areas for special or regular United States military personnel for intervention in conflict areas in the Southeast Asian region. This can be in the form of landing rights given to their fighter jets and stealth bombers or way stations for SEALS or other special units entering foreign territory in states not officially at war with the Philippines.

Two: Parts of Philippine territory may be used to supplement overt communication systems of the United States forces. For instance, cyberwarfare targeting a state hostile to the United States can be launched from any of the Agreed Locations to pursue their interests even if this will not augur well to Philippine foreign policy.

Three: Parts of Philippine territory may be used to plan, deploy, and supply covert operations done by United States contractors such as Blackwater and other mercenary groups that have been used by the United States in other parts of the world. The EDCA covers these types of operations within and outside Philippine territory. Again, the consequences to Philippine foreign policy in cases where targets are found in neighboring countries would be immeasurable.

The Visiting Forces Agreement does not cover these sample activities. Nor does it cover United States contractors.

IX
Blanket authority over Agreed Locations is granted under Article VI, Section 3 of the EDCA. The United States forces are given a broad range of powers with regard to the Agreed Locations that are "necessary for their operational control or defense."^[51] This authority extends to the protection of United States forces and contractors. In addition, the United States is merely obligated to coordinate with Philippine authorities the measures they will take in case they deem it necessary to take action.

In contrast, the Mutual Defense Treaty is different. It is specific to the maintenance and development of the Philippines and the United States' individual and collective capacity to resist armed attack. The parties' goal under the Mutual Defense Treaty is to enhance collective defense mechanisms for the preservation of peace and security in the Pacific area.^[52]

While certain activities such as "joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall . . . under the provisions of the RP-US Mutual Defense Treaty,"^[53] the alleged principles of Defensive Reaction and Defensive Preparation do not license the ceding of authority and control over specific portions of the Philippines to foreign military forces without compliance with the Constitutional requirements.^[54] Such grant of authority and control over Agreed Locations to foreign military forces involves a drastic change in national policy and cannot be done in a mere executive agreement.

Moreover, nothing in the VFA provides for the use of Agreed Locations to United States forces or personnel, considering that the VFA focuses on the visitation of United States armed forces to the Philippines in relation to joint military exercises:

Preamble
The Government of the United States of America and the Government of the Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area;

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;

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines!.]
(Emphasis supplied)

In Lim, the Terms of Reference^[55] of the "Balikatan 02-1" joint military exercises is covered by the VFA. Hence, under the VFA, activities such as joint exercises, which "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,"^[56] are authorized. However, Lim specifically provided for the context of the conduct of the combat-related activities under the VFA: President George W. Bush's international anti-terrorism campaign as a result of the events on September 11, 2001.^[57]

Meanwhile, the EDCA unduly expands the scope of authorized activities to Agreed Locations with only a vague reference to the VFA:

Article I
Purpose and Scope
1. This Agreement deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT, which states that "the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual capacity to resist armed attack, and within the context of VFA. This includes:

(a) Supporting the Parties' shared goal of improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), addressing short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities; and

(b) Authorizing access to Agreed Locations in the territory of the Philippines by United States forces on a rotational basis, as mutually determined by the Parties.

2. In furtherance of the MDT, the Parties mutually agree that this Agreement provides the principal provisions and necessary authorizations with respect to Agreed Locations.

3. The Parties agree that the United States may undertake the following types of activities in the territory of the Philippines in relation to its access to and use of Agreed Locations: 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. (Emphasis supplied)

The VFA was ratified in 1998. However, in 2011, the Obama Administration announced its plan of intensifying its presence in the Asia-Pacific region.^[58] The United States hinges this pivot on maritime peace and security in the region in relation to a stable international economic order.^[59] Hence, their Department of Defense enumerates three maritime objectives: "to safeguard the freedom of the seas; deter conflict and coercion; and promote adherence to international law and standards."^[60]

To achieve these objectives, the United States conducts operations, exercises, and training with several countries it considers allies in the region.^[61] Nevertheless, key to the United States' military strategy is the enhancement of its forward presence in the Asia-Pacific:

Force Posture
One of the most important efforts the Department of Defense has underway is to enhance our forward presence by bringing our finest capabilities, assets, and people to the Asia-Pacific region. The U.S. military presence has underwritten security and stability in the Asia-Pacific region for more than 60 years. Our forward presence not only serves to deter regional conflict and coercion, it also allows us to respond rapidly to maritime crises. Working in concert with regional allies and partners enables us to respond more effectively to these crises.

The United States maintains 368,000 military personnel in the Asia-Pacific region, of which approximately 97,000 are west of the International Date Line. Over the next five years, the U.S. Navy will increase the number of ships assigned to Pacific Fleet outside of U.S. territory by approximately 30 percent, greatly improving our ability to maintain a more regular and persistent maritime presence in the Pacific. And by 2020, 60 percent of naval and overseas air assets will be home-ported in the Pacific region. The Department will also enhance Marine Corps presence by developing a more distributed and sustainable laydown model.

Enhancing our forward presence also involves using existing assets in new ways, across the entire region, with an emphasis on operational flexibility and maximizing the value of U.S. assets despite the tyranny of distance. This is why the Department is working to develop a more distributed, resilient, and sustainable posture. As part of this effort, the United States will maintain its presence in Northeast Asia, while enhancing defense posture across the Western Pacific, Southeast Asia, and the Indian Ocean.
. . . .

In Southeast Asia, the Department is honing an already robust bilateral exercise program with our treaty ally, the Republic of the Philippines, to assist it with establishing a minimum credible defense more effectively. We are conducting more than 400 planned events with the Philippines in 2015, including our premier joint exercise, Balikatan, which this year was the largest and most sophisticated ever. During this year's Balikatan, more than 15,000 U.S., Philippine, and Australian military personnel exercised operations involving a territorial defense scenario in the Sulu Sea, with personnel from Japan observing.^[62] (Emphasis supplied)

These changes in United States policy are reflected in the EDCA and not in the VFA. Thus, there is a substantial change of objectives.

If, indeed, the goal is only to enhance mutual defense capabilities under the Mutual Defense Treaty through conduct of joint military exercises authorized by the VFA, then it behooves this court to ask the purpose of providing control and authority over Agreed Locations here in the Philippines when it is outside the coverage of both the Mutual Defense Treaty and the VFA. Through a vague reference to the VFA, respondents fail to establish how the EDCA merely implements the VFA. They cannot claim that the provisions of the EDCA merely make use of the authority previously granted under the VFA. What is clear is that the Agreed Locations become a platform for the United States to execute its new military strategy and strengthen its presence in the Asia-Pacific, which is clearly outside the coverage of the VFA.

In addition, the EDCA does not merely implement the Mutual Defense Treaty and VFA when it provides for the entry of United States private contractors into the Philippines.

In the EDCA, United States contractors are defined as follows:

3. "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.^[63] (Emphasis supplied)

This definition admits that the VFA does not provide for the entry of contractors into Philippine territory. The activities that United States contractors are allowed to undertake are specific to United States forces or personnel only as can be gleaned from this court's decisions in Bayan, Lim, and Nicolas. Hence, the extensive authority granted to United States contractors cannot be sourced from the VFA:

Article II
DEFINITIONS . . . .
4. "Agreed Locations" means facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements.

Article III
AGREED LOCATIONS
1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refuel big 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.
. . . .
Article IV
EQUIPMENT, SUPPLIES, AND MATERIEL . . . .
4. United States forces and United States 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.

5. The Parties share an intent that United States contractors may carry out such matters in accordance with, and to the extent permissible under, United States laws, regulations, and policies. (Emphasis supplied)

Respondents, through the Office of the Solicitor General, insist that the EDCA is an implementing agreement of the Mutual Defense Treaty and the VFA. They do so based on the conclusion that all treaties or agreements entered into by the Philippines pursuant to certain principles contained in the Mutual Defense Treaty may be considered subservient to these treaties. This will substantially weaken the spirit of Article XVIII, Section 25 and the sovereign desire to achieve an independent foreign policy.

X
The EDCA authorizes the use of Philippine territory as bases of operations. Although not as permanent as those set up pursuant to the 1947 Military Bases Agreement, they are still foreign military bases within the contemplation of Article XVIII, Section 25 of the Constitution.

The development and use of these Agreed Locations are clearly within the discretion of the United States. The retention of ownership by the Philippines under Article V(l)^[64] of the EDCA does not temper the wide latitude accorded to the other contracting party. At best, the United States' only obligation is to consult and coordinate with our government. Under the EDCA, the consent of the Philippine government does not extend to the operations and activities to be conducted by the United States forces and contractors. Operational control remains solely with the United States government. The agreement did not create a distinction between domestic and international operations. Ownership of the Agreed Locations under the EDCA is a diluted concept, with the Philippine government devoid of any authority to set the parameters for what may and may not be conducted within the confines of these areas.

What constitutes a "base" in the context of United States-Philippine relations may be explored by revisiting the 1947 Military Bases Agreement.^[65] In one of the agreement's preambular clauses, the United States and Philippine governments agreed that in line with cooperation and common defense, the United States shall be granted the use of certain lands of the public domain in the Philippines, free of rent.^[66] In line with the promotion of mutual security and territorial defense, the extent of rights of the contracting parties in the use of these lands was described in Article III of the agreement:

Article III

Description of rights
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.

2. Such rights, power and authority shall include, inter alia, the right, power and authority:

a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases;

b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;

c) 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 waterborne craft, aircraft and other vehicles on water, in the air or on land comprising or in the vicinity of the bases;

d) the right to acquire, as may be agreed between the two Governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including sub-marine and subterranean cables, pipe lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the two Governments to construct the necessary facilities;

e) to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessel or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological systems, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.

3. In the exercise of the above-mentioned rights, power and authority, the United States agrees that the powers granted to it will not be used unreasonably or, unless required by military necessity determined by the two Governments, so as to interfere with the necessary rights of navigation, aviation, communication, or land travel within the territories of the Philippines. In the practical application outside the bases of the rights, power and authority granted in this Article there shall be, as the occasion requires, consultation between the two Governments. (Emphasis supplied)

The bases contemplated by the 1947 Military Bases Agreement contain the elements of (a) absolute control of space; (b) the presence of a foreign command; and (c) having a purpose of a military nature. The agreement also relegates the role of the Philippine government to a mere "consultant" in cases of applications falling outside the terms provided in Article III.

The EDCA contains similar elements.

However, the EDCA has an open-ended duration. Despite having an initial term of 10 years, Article XII(4) specifically provides for the automatic continuation of the agreement's effectivity until a party communicates its intent to terminate.^[67]

The purpose of the Agreed Locations is also open-ended. At best, its definition and description of rights provide that the areas shall be for the use of United States forces and contractors. However, short of referring to Agreed Locations as bases, the EDCA enumerates activities that tend to be military in nature, such as bunkering of vessels, pre-positioning of equipment, supplies, and materiel, and deploying forces and materiel.^[68] The United States is also allowed to undertake the construction of permanent facilities,^[69] as well as to use utilities and its own telecommunications systems.^[70]

Most significant is the Philippine government's grant to the United States government of operational control over the Agreed Locations:^[71]

Article VI
Security . . . .
3. 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 measures to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.

4. The Parties shall take all reasonable measures to ensure the protection, safety, and security of United States property from seizure by or conversion to the use of any party other than the United States, without the prior written consent of the United States. (Citation omitted)

The United States Department of Defense Dictionary of Military and Associated Terms^[72] defines "operational control" as:

[Operational control — 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 necessary to accomplish the mission. Also called OPCON.

Similar to the 1947 Military Bases Agreement, the role of the Philippine government has been reduced to that of a consultant, except that the EDCA avoided the use of this label.

In some respects, too, the EDCA is similar to the Treaty of Friendship, Cooperation and Security between the Government of the Republic of the Philippines and the Government of the United States of America, which was rejected by the Philippine Senate in 1991. This rejected treaty^[73] defines installations as:

"Installations" on the base authorized for use by the United States forces are buildings and structures to include non-removable buildings, structures, and equipment therein owned by the Government of the Philippines, grounds, land or sea areas specifically delineated for the purpose. "Non-removable buildings and structures" refer to buildings, structures, and other improvements permanently affixed to the ground, and such equipment, including essential utility systems such as energy and water production and distribution systems and heating and air conditioning systems that are an integral part of such buildings and structures, which are essential to the habitability and general use of such improvements and are permanently attached to or integrated into the property.

The treaty, which was not concurred in by the Senate, sets the parameters for defense cooperation and the use of installations in several provisions:

Article IV
Use of Installations by the US Forces
1. Subject to the provisions of this Agreement, the Government of the Philippines authorizes the Government of the United States to continue to use for military purposes certain installations in Subic Naval Base.

2. The installations shall be used solely for the purposes authorized under this Agreement, and such other purposes as may be mutually agreed upon

3. Ownership of all existing non-removable buildings and structures in Subic Naval Base is with the Government of the Philippines which has title over them. The Government of the Philippines shall also become owner of all non-removable buildings and structures that shall henceforth be constructed in Subic Naval Base immediately after their completion, with title thereto being vested with the Government of the Philippines.

4. The Government of the United States shall not remove, relocate, demolish, reconstruct or undertake major external alterations of non-removable buildings and structures in Subic Naval Base without the approval of the Philippine commander. The United States shall also not construct any removable or non-removable buildings or structures without the approval of the Philippine Commander. The Philippine Commander will grant such approval for reasons of safety as determined jointly by the Philippine and United States Commanders
. . . .

8. The Government of the United States shall bear costs of operations and maintenance of the installations authorized for use in accordance with Annex B to this Agreement.

9. The Government of the Philippines will, upon request, assist the United States authorities in obtaining water, electricity, telephone and other utilities. Such utilities shall be provided to the Government of the United States, United States contractors and United States personnel for activities under this Agreement at the rates, terms and conditions not less favorable than those available to the military forces of the Philippine government, and free of duties, taxes, and other charges.

Article VII Defense Cooperation and Use of Philippine Installations

1. Recognizing that cooperation in the areas of defense and security serves their mutual interest and contributes to the maintenance of peace, and reaffirming their existing defense relationship, the two Governments shall pursue their common concerns in defense and security.

2. The two Governments recognize the need to readjust their defense and security relationship to respond to existing realities in the national, regional, and global environment. To this end, the Government of the Republic of the Philippines allows the Government of the United States to use installations in Subic Naval Base for a specified period, under specific conditions set forth in Supplementary Agreement Number Two: Agreement on Installations and Military Operating Procedures and Supplementary Agreement Number Three: Agreement on the Status of Forces.

3. Both governments shall also cooperate in the maintenance, upgrading and modernization of the defense and security capabilities of the armed forces of both countries, particularly of those of the Republic of the Philippines. In accordance with the common desire of the Parties to improve their defense relationship through balanced, mutual contributions to their common defense, the Government of the United States shall, subject to the constitutional procedures and to United States Congressional action, provide security assistance to the Government of the Philippines to assist in the modernization and enhancement of the capabilities of the Armed Forces of the Philippines and to support appropriate economic programs.

The 1987 Constitution does not proscribe the establishment of permanent or temporary foreign military bases. However, the Constitution now requires that decisions on the presence of foreign military bases, troops, and facilities be not the sole prerogative of the President and certainly not the prerogative at all of the Secretary of Defense or Philippine Representatives to the Mutual Defense Board and the Security Enhancement Board.

Absent any transmission by the President to the Senate, the EDCA remains a formal official memorial of the results of intensive negotiations only. It has no legal effect whatsoever, and any implementation at this stage will be grave abuse of discretion.

XI
Thus, the EDCA amends the VFA. Since the VFA is a treaty, the EDCA cannot be implemented.

Treaties, being of the same status as that of municipal law, may be modified either by another statute or by the Constitution itself.^[74] Treaties such as the VFA cannot be amended by an executive agreement.

XII
Petitioners invoke this court's power of judicial review to determine whether respondents from the Executive Branch exceeded their powers and prerogatives in entering into this agreement on behalf of the Philippines "in utter disregard of the national sovereignty, territorial integrity and national interest provision of the Constitution, Section 25 of the Transitory provisions of the Constitution, Section 21 and other provisions of the Philippine Constitution and various Philippine laws and principles of international law."^[75]

Petitioners submit that all requisites for this court to exercise its power of judicial review are present.^[76] Petitioners in G.R. No. 212444 discussed that they had legal standing and they raised justiciable issues. Petitioners in G.R. No. 212426 similarly discussed their legal standing, the existence of an actual case or controversy involving a conflict of legal rights, and the ripeness of the case for adjudication.^[77]

Respondents counter that only the Senate may sue on matters involving constitutional prerogatives, and none of the petitioners are Senators.^[78] They submit that "[t]he silence and active non-participation of the Senate in the current proceedings is an affirmation of the President's characterization of the EDCA as an executive agreement,"^[79] and "there is no such actual conflict between the Executive and the Senate."^[80] They add that the overuse of the transcendental importance exception "has cheapened the value of the Constitution's safeguards to adjudication."^[81]

Article VIII, Section 1 of the Constitution now clarifies the extent of this court's power of judicial review "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."^[82]

The 1936 landmark case of Angara v. Electoral Commission^[83] explained the fundamental principle of separation of powers among government branches and this court's duty to mediate in the allocation of their constitutional boundaries:

In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

. . . 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 limitation and restrictions embodied in our Constitution are real as they should be in any living constitution. . . .

The Constitution is a definition of the powers of government. . . 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. Even then, this 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 Us mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions 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 governments of the government.^[84]

Jurisprudence abounds on these four requisites for the exercise of judicial review. It must be shown that an actual case or controversy exists; that petitioners have legal standing; that they raised the constitutionality question at the earliest possible opportunity; and that the constitutionality question is the very lis mota of the case.^[85]

This court can only exercise its power of judicial review after determining the presence of all requisites, such as an actual case or controversy, in consideration of the doctrine of separation of powers. It cannot issue advisory opinions nor overstep into the review of the policy behind actions by the two other co-equal branches of government. It cannot assume jurisdiction over political questions.

XIII
The requirement for an actual case or controversy acknowledges that courts should refrain from rendering advisory opinions concerning actions by the other branches of government.^[86]

Courts resolve issues resulting from adversarial positions based on existing facts established by the parties who seek the court's application or interpretation of a legal provision that affects them.^[87] It is not for this court to trigger or re-enact the political debates that resulted in the enactment of laws after considering broadly construed factual circumstances to allow a general application by the Executive.^[88]

The requisite actual case or controversy means the existence of "a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice."^[89] It means the pleadings show "an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue."^[90]

Thus, it is not this court's duty to "rule on abstract and speculative issues barren of actual facts."^[91] Ruling on abstract cases presents the danger of foreclosing litigation between real parties, and rendering advisory opinions presents the danger of a court that substitutes its own imagination and predicts facts, acts, or events that may or may not happen.^[92] Facts based on judicial proof must frame the court's discretion,^[93] as "[r]igor in determining whether controversies brought before us are justiciable avoids the counter majoritarian difficulties attributed to the judiciary."^[94]

Abstract cases include those where another political department has yet to act. In other words, a case not ripe for adjudication is not yet a concrete case.

Republic of the Philippines v. Roque^[95] clarified the concept of having an actual case or controversy and the aspect of ripeness:

Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by "ripening seeds" it is meant, not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled and stabilized by tranquilizing declaration.

A perusal of private respondents' petition for declaratory relief would show that they have failed to demonstrate how they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the assailed provisions of RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases, private respondents only assert general interests as citizens, and taxpayers and infractions which the government could prospectively commit if the enforcement of the said law would remain untrammelled. As their petition would disclose, private respondents' fear of prosecution was solely based on remarks of certain government officials which were addressed to the general public. They, however failed to show how these remarks tended towards any prosecutorial or governmental action geared towards the implementation of RA 9372 against them. In other words, there was no particular, real or imminent threat to any of them As held in Southern Hemisphere:

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency" where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.^[96] (Emphasis supplied, citations omitted)

Our courts generally treat the issue of ripeness for adjudication in terms of actual injury to the plaintiff.^[97] The question is whether "the act being challenged has had a direct adverse effect on the individual challenging it."^[98] The Petitions are premature. Since the Senate has yet to act and the President has yet to transmit to the Senate, there is no right that has been violated as yet.

XIV
There is still a political act that must happen before the agreement can become valid and binding. The Senate can still address the constitutional challenges with respect to the contents of the EDCA. Thus, the challenges to the substantive content of the EDCA are, at present, in the nature of political questions.

However, the nature of the EDCA, whether it is a treaty or merely an executive agreement, is ripe for adjudication.

In 1957, Tañada v. Cuenco^[99] explained the concept of political questions as referring to issues that depend not on the legality of a measure but on the wisdom behind it:

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is political or not. In this connection, Willoughby lucidly states:

"Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts."

To the same effect is the language used in Corpus Juris Secundum, from which we quote:

"It is well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred upon the courts by express constitutional or statutory provisions.

"It is not easy, however, to define the phrase 'political question', nor to determine what matters fall within its scope. It is frequently used to designate all questions that the outside the scope of the judicial questions, which under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government."

Thus, it has been repeatedly held that the question whether certain amendments to the Constitution are invalid for non-compliance with the procedure therein prescribed, is not a political one and may be settled by the Courts.

In the case of In re McConaughy, the nature of political question was considered carefully. The Court said:

"At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem, to be finally settled.

. . . What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated-to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to 'the end that the government may be one of laws and not men'—words which Webster said were the greatest contained in any written constitutional document."

In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus JurisSecundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.^[100] (Emphasis supplied, citations omitted)

Francisco v. House of Representatives ^[101] involved the second impeachment Complaint filed against former Chief Justice Hilario Davide before the House of Representatives and raised the issue of whether this raised a political question. It traced the evolution of jurisprudence on the political question doctrine and the effect of this court's expanded power of judicial review under the present Constitution on this doctrine:

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution.

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. . . .

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, (t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction todelimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. . . .
. . . .

In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits[.]^[102] (Emphasis supplied)

In Diocese of Bacolod v. COMELEC,^[103] this court held that the political question doctrine never precludes this court's exercise of its power of judicial review when the act of a constitutional body infringes upon a fundamental individual or collective right.^[104] However, this will only be true if there is no other constitutional body to whom the discretion to make inquiry is preliminarily granted by the sovereign.

Ruling on the challenge to the content of the EDCA will preclude and interfere with any future action on the part of the Senate as it inquires into and deliberates as to whether it should give its concurrence to the agreement or whether it should advise the President to reopen negotiations to amend some of its provisions. It is the Senate, through Article VII, Section 21 in relation to Article XVIII, Section 25, that was given the discretion to make this initial inquiry exclusive of all other constitutional bodies, including this court. A policy of deference and respect for the allocation of such power by the sovereign to a legislative chamber requires that we refrain from making clear and categorical rulings on the constitutional challenges to the content of the EDCA.

XV
It is true that we have, on certain occasions, substantially overridden the requirements of justiciability when there is an imminent threat to the violation of constitutional rights. In Garcia v. Drilon,^[105] I stated that:

I am aware of our precedents where this Court has waived questions relating to the justiciability of the constitutional issues raised when they have "transcendental importance" to the public. In my view, this accommodates our power to promulgate guidance "concerning the protection and enforcement of constitutional rights." We choose to rule squarely on the constitutional issues in a petition wanting all or some of the technical requisites to meet out general doctrines on justiciability but raising clear conditions showing imminent threat to fundamental rights. The imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. In a sense, our exceptional doctrine relating to constitutional issues of "transcendental importance" prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial protection.^[106] (Emphasis supplied, citations omitted)

There is, however, no need to invoke these exceptions. The imminence of the implementation of the EDCA and, therefore, the clarity of the impending threat to constitutional rights do not appear cogent if we declare that the EDCA, without Senate concurrence, is not yet valid and binding as a treaty or fully complying with the requirements of Article XVIII, Section 25.

XVI
The proposed disposition of this case does not in any way discount the deployment of the expertise of the Executive as it conducts foreign policy.

Nor should we arrogate executive discretion by compelling the President to transmit the agreement to the Senate for concurrence.^[107]

Nevertheless, the judiciary has the duty to ensure that the acts of all branches of government comply with the fundamental nature of the Constitution.^[108] While the EDCA is a formal and official memorial of the results of negotiations between the Philippines and the United States, it is not yet effective until the Senate concurs or there is compliance with Congressional action to submit the agreement to a national referendum in accordance with Article XVIII, Section 25 of the Constitution.

It is, thus, now up to the President. Should he desire to continue the policy embedded in the EDCA, with deliberate dispatch he can certainly transmit the agreement to the Senate for the latter to initiate the process to concur with the agreement. After all, on these matters, the sovereign, speaking through the Constitution, has assumed that the exercise of wisdom is not within the sole domain of the President. Wisdom, in allowing foreign military bases, troops, or facilities, is likewise within the province of nationally elected Senators of the Republic.

On these matters, the Constitution rightly assumes that no one person—because of the exigencies and their consequences—has a monopoly of wisdom.

In my view, the same security concerns that moved the President with haste to ratify the EDCA signed by his Secretary of Defense will be the same security concerns—and more—that will move the Senate to consider the agreement with dispatch. There are matters of national consequence where the views of an elected President can be enriched by the views of an elected Senate. Certainly, the participation of the public through these mechanisms is as critical as the foreign policy directions that the EDCA frames.

By abbreviating the constitutional process, this court makes itself vulnerable to a reasonable impression that we do not have the courage to enforce every word, phrase, and punctuation in the Constitution promulgated by our People. We will stand weak, as an institution and by implication as a state, in the community of nations. In clear unequivocal words, the basic instrument through which we exist requires that we interpret its words to make real an independent foreign policy. It requires measures be fully publicly discussed before any foreign resource capable of making war with our neighbors and at the command of a foreign sovereign—foreign military bases, troops and facilities—becomes effective.

Instead, the majority succumbed to a narrative of dependence to a superpower.

Our collective memories are perilously short. Our sense of history is wanting.

The Americans did not recognize the Declaration of Independence of 1898, which was made possible by the blood of our ancestors. They ignored their agreements with the Filipino revolutionaries when they entered Intramuros and staged the surrender of the Spanish colonizers to them. They ignored our politicians when they negotiated the Treaty of Paris. Not a single Filipino was there—not even as an observer. They triggered armed conflict with the Filipino revolutionaries. The schools they put up attempted to block out the inhumanity and barbarism in the conflict that followed. Only a few remember the massacres of Samar, of Bud Dajo, and of other places in our country. In the memory of many Filipinos today, these brutalities have been practically erased.

Filipino veterans of World War II who fought gallantly with the Americans, now gray and ailing, still await equal treatment with United States war veterans. Filipina comfort women of that war still seek just treatment and receive no succor from the ally with and for whom they bled and suffered.

The 1951 Mutual Defense Treaty and the Visiting Forces Agreement was in effect when the Chinese invaded certain features within our Exclusive Economic Zone in the West Philippine Sea. The Americans did not come to our aid. The President of the United States visited and, on the occasion of that visit, our own President announced the completion of the EDCA. No clear, unequivocal, and binding commitment was given with respect to the applicability of the Mutual Defense Treaty to the entirety of our valid legal claims in the West Philippine Sea. The commitment of the United States remains ambiguous. The United States' statement is that it will not interfere in those types of differences we have with China, among others.

The inequality of the Mutual Defense Treaty is best presented by the image of a commissioned but rusting and dilapidated warship beached in a shoal in the West Philippine Sea. This ship is manned by a handful of gallant heroic marines, and by the provisions of the Mutual Defense Treaty, an attack on this ship—as a public vessel—is what we are relying upon to trigger mutual defense with the United States.

We remain a permanent ally of the United States. For decades, we relied on them for the training of our troops and the provision of military materiel. For decades, we hosted their bases. Yet, our armed forces remain woefully equipped. Unlike in many of their other allies, no modern US-made fighter jet exists in our Air Force. We have no credible missile defense. Our Navy's most powerful assets now include a destroyer that was decommissioned by the United States Coast Guard.

It is now suggested that these will change with the EDCA. It is now suggested that this court should act to make that change possible. Impliedly, it is thus also suggested that the Senate, or Congress, or the People in a referendum as provided in our Constitution, will be less patriotic than this court or the President.

There has never been a time in our history—and will never be a time in the future—when the national interest of the United States was subservient to ours. We cannot stake our future on how we imagine the United States will behave in the future. We should learn from our history. If we wish the United States to behave in a way that we expect, then our government should demand clear commitments for assistance to our primary interests. The likelihood that this will happen increases when agreements with them run through the gauntlet of public opinion before they become effective.

Certainly, this is what the Constitution provides. Certainly, this is the least that we should guarantee as a court of law.

FINAL NOTE
In 1991, there was the "Senate that Said No" to the extension of the stay of military bases of the United States within Philippine territory. That historical decision defined the patriotism implicit in our sovereignty. That single collective act of courage was supposed to usher opportunities to achieve the vision of our Constitution for a more meaningful but equal relationship with the American empire. That act was the pinnacle of decades of people's struggles.

History will now record that in 2016, it is this Supreme Court that said yes to the EDCA. This decision now darkens the colors of what is left of our sovereignty as defined in our Constitution. The majority's take is the aftermath of squandered opportunity. We surrender to the dual narrative of expediency and a hegemonic view of the world from the eyes of a single superpower. The opinion of the majority of this Supreme Court affirms executive privileges and definitively precludes Senate and/or Congressional oversight in the crafting of the most important policies in our relations with the United States and, implicitly, its enemies and its allies. In its hurry to abbreviate the constitutional process, the majority also excludes the possibility that our people directly participate in a referendum called to affirm the EDCA.

Article XVIII, Section 25 does not sanction the surreptitious executive approval of the entry of United States military bases or any of its euphemisms (i.e., "Agreed Locations") through strained and acrobatic implication from an ambiguous and completely different treaty provision.

The majority succeeds in emasculating our Constitution. Effectively, this court erases the blood, sweat, and tears shed by our martyrs.

I register more than my disagreement. I mourn that this court has allowed this government to acquiesce into collective subservience to the Executive power contrary to the spirit of our basic law.

I dissent.

ACCORDINGLY, I vote to PARTIALLY GRANT the Petitions and to DECLARE the Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the Philippines and the United States of America as a formal and official memorial of the results of the negotiations concerning the allowance of United States military bases, troops, or facilities in the Philippines, which is NOT EFFECTIVE until it complies with the requisites of Article XVIII, Section 25 of the 1987 Philippine Constitution, namely: (1) that the agreement must be in the form of a treaty; (2) that the treaty must be duly concurred in by the Philippine Senate and, when so required by Congress, ratified by a majority of votes cast by the people in a national referendum; and (3) that the agreement is either (a) recognized as a treaty or (b) accepted or acknowledged as a treaty by the United States before it becomes valid, binding, and effective.

---

^[1] Heneral Luna, Dir. Jerrold Tarog Artikulo Uno Productions (2015). The inclusion of this quote is to emphasize its metaphor and not meant in any way to denigrate the human dignity of commercial sex workers.

^[2] Bayan v. Zamora, 396 Phil. 623 (2000) [Per J. Buena, En Banc].

^[3] Id. at 632-637.

^[4] Id. at 654-657.

^[5] 430 Phil. 555 (2002) [Per J. De Leon, Jr., En Banc].

^[6] Id. at 575-576. "Nemo potest facere per alium quod non potesl facere per directum" translates to "No one is allowed to do indirectly what he is prohibited to do directly."

^[7] 598 Phil, 262 (2009) [Per J. Azcuna, En Banc].

^[8] Id. at 284-285.

^[9] Charter of United Nations, Chapter I, art. 2(4) (visited January 11, 2016).

^[10] Charter of United Nations, Chapter VII, art. 51 (visited January 11, 2016). See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), I.C.J. 1984 I.C.J. 39

^[11] See Anthony Clark Arend, International Law and the Preemptive Use of Military Force, THE Washington Quarterly 26:2, 89-103 (2003). See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 242-243 (1994), citing US Secretary of State Webster in his diplomatic note in the 1842 Caroline Case. According to Professor Higgins, under customary international law, pre-emptive self-defense may be resorted to when the necessity is "instant, overwhelming, and leav[es] no choice of means, and no moment for deliberation."

^[12] See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 245-248 (1994). See Keynote address by Jacques Forster, Vice President of the International Committee of the Red Cross, presented at the Ninth Annual Seminar on International Humanitarian Law for Diplomats accredited to the United Nations, Geneva, 8-9 March 2000 (visited January 11, 2016): "The use of force by the international community should come within the scope of the United Nations Charter. International humanitarian law cannot be invoked to justify armed intervention because it has nothing to do with the right of States to use force. Its role is strictly limited to setting limits to armed force irrespective of the legitimacy of its use." See also United Nations Security Council Resolution 1674 (2006) on the concept of Responsibility to Protect (visited January 11, 2016).

^[13] Charter of United Nations, Chapter VII, art. 42 (visited January 11, 2016).

^[14] See Charter of United Nations, Chapter VII, art. 44 (visited January 11, 2016). See also Enforcement action through regional arrangements under Articles 52 (1) and 53 (1) of the United Nations Charter, (visited January 11, 2016).

^[15] CONST., art. VII, seel.

^[16] CONST., art. VII, sec.17.

^[17] Bayan v. Zamora, 396 Phil. 623, 663 (2000) [Per J. Buena, En Banc].

^[18] CONST., art. VII, sec. 18.

^[19] CONST., art. VII, sec. 18.

^[20] Bayan v. Zamora, 396 Phil. 623, 651-655 (2000) [Per J. Buena, En Banc].

^[21] Id. at 653-655.

^[22] Ponencia, pp. 26-27.

^[23] Id. at 28.

^[24] Thomas Waldman, Politics and War: Clausewitz's Paradoxical Equation, AUTUMN 2 (2010) (visited January 11, 2016).

^[25] J. Puno, Dissenting Opinion in Bayan v. Zamora, 396 Phil. 623, 672-675 (2000) [Per J. Buena, En Banc].

^[26] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), Art. 1, sec. 1.

^[27] See Vienna Convention on the Law of Treaties (1969), art. 2(1 )(a) and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, art. 2(1)(a)(1986). 28

^[28] See Bayan v. Zamora, 396 Phil. 623 (2000) [Per J. Buena, En Banc]; and Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303 (2005) [Per J. Puno, En Banc]. See also Exec. Order No. 292 (1987), Book IV, Title I, sec. 3(1) and 20.

^[29] Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961) [Per J. Concepcion, En Banc].

^[30] Id.

^[31] Id. at 338.

^[32] MERLIN M. MAGALLONA, A PRIMER IN INTERNATIONAL LAW 62-64 (1997).

^[33] ARTICLE 2. USE OF TERMS
. . . .

2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.

^[34] 1. For the purposes of the present Convention:

(a) "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

^[35] See Merlin M. Magallona, The Supreme Court and International Law: Problems and Approaches in Philippine Practice, in INTERNATIONAL RELATIONS PAMPHLET SERIES NO. 12, 16-17(2010).

^[36] See 1 OLIVIER CORTIEN AND PIERRE KLEIN, THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 34 and 55 (2011).

^[37] MERLIN M. MAGALLONA, A PRIMER IN INTERNATIONAL LAW 66-67 (1997).

^[38] Article 62. Fundamental Change of Circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treary unless:
   
   
   1. The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
      
      
   2. The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
      
   
   
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty;
   
   
   1. If the treaty establishes a boundary; or
      
   2. If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
      
   
   
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
   Vienna Convention of the Law of Treaties (1969)

(visited January 11, 2016).

^[39] Vienna Convention of the Law of Treaties, art. 62 (1969) (visited January 11, 2016).

^[40] Merlin M. Magallona, A Critical Review of the EDCA 29 (2014) (Unpublished), annexed to petitioners' Memorandum.

^[41] J. Puno, Dissenting Opinion in Bayan v. Zamora, 396 Phil. 623, 672-673 (2000) [Per J. Buena, En Banc].

^[42] 128 S.Ct. 1346; 170 L.Ed.2d 190.

^[43] J. Carpio, Dissenting Opinion in Nicolas v. Romulo, 598 Phil. 262, 308-312 (2009) [Per J. Azcuna, En Banc].

^[44] Respondents' Memorandum, pp. 15-16.

^[45] ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations, Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

^[46] 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.

^[47] Respondents' Memorandum, p. 15.

^[48] Id. at 16.

^[49] Id., citing Agreement between the Government Republic of the Philippines and the Government of the United States of America Regarding the Treatment of United States Armed Forces Visiting the Philippines (1998), art. I, VII, and VIII.

^[50] (b) Authorizing access to Agreed Locations in the territory of the Philippines by United States forces on a rotational basis, as mutually determined by the Parties.

^[51] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. VI(3). 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 measures to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.

^[52] Mutual Defense Treaty between the Republic of the Philippines and the United States of America (1951), Preamble, par. 4.

^[53] Nicolas v. Romulo, 598 Phil. 262, 284 (2009) (Per J. Azcuna, En Bane].

^[54] See CONST., art. XVIII, sec. 25.

^[55] The Terms of Reference provides:

I. POLICY LEVEL

1. The Exercise shall be Consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).
   
   
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties.
   
   
3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.
   
   
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX.
   
   
5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period.
   
   
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise.
   
   
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the AFP Forces.
   
   
8. US exercise participants shall not engage in combat, without prejudice to their right of self- defense.
   
   
9. These terms of Reference arc 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

1. 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.
   
   
2. At no time shall US Forces operate independently within RP territory.
   
   
3. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

1. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VFA. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise.
   
   
2. 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.
   
   
3. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.
   
   
4. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.

3. PUBLIC AFFAIRS

1. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
   
   
2. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces.
   
   
3. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials.

^[56] Lim v. Executive Secretary, 430 Phil. 555 (2002) [Per J. De Leon, Jr., En Bane].

^[57] Id. at 564.

^[58] Manyin, Mark E., Pivot to the Pacific? The Obama Administration's "Rebalancing" Toward Asia (2012) (visited January 11, 2016). See Jonathan G. Odom, What Does a "Pivot" or "Rebalance" Look Like? Elements of the U.S. Strategic Turn Towards Security in the Asia-Pacific Region and Its Waters, 14 APLPJ 2-8 (2013); Ronald O'Rourke, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, (2015) (visited January 11, 2016).

^[59] United States Department of Defense, The Asia-Pacific Maritime Security Strategy: Achieving U.S. National Security Objectives in a Changing Environment, (1-2)


^[60] Id. at 1.

^[61] Id. at 23-24.

^[62] Id. at 22-23.

^[63] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. II (3).

^[64] "The Philippines shall retain ownership of and title to Agreed Locations."

^[65] A copy is contained in Treaties and Other International Agreements of the United States of America 1776-1949, as compiled under the direction of Charles I. Bevans, LL.B., Assistant Legal Adviser, Department of State (visited November 5, 2015).

^[66] WHEREAS, the Governments of the United States of America and of the Republic of the Philippines are desirous of cooperating in the common defense of their two countries through arrangements consonant with the procedures and objectives of the United Nations, and particularly through a grant to the United States of America by the Republic of the Philippines in the exercise of its title and sovereignty, of the use, free of rent, in furtherance of the mutual interest of both countries, of certain lands of the public domain;

^[67] 4. This Agreement shall have an initial term of ten years, and thereafter, it shall continue in force automatically unless terminated by either Party by giving one year's written notice through diplomatic channels of its intention to terminate this Agreement.

^[68] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. Ill (1).

^[69] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. V (4) provides: All buildings, non-relocatable structures, and assemblies affixed to the land, in the Agreed Locations, including ones altered or improved by United States forces, remain the property of the Philippines. Permanent buildings constructed by United States forces become the property of the Philippines, once constructed, but shall be used by United States forces until no longer required by United States forces.

^[70] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. VII provides for the use of utilities and communication systems:

1. The Philippines hereby grants to United States forces and United States contractors the use of water, electricity, and other public utilities on terms and conditions, including rates or charges, no less favorable than those available to the AFP or the Government of the Philippines in like circumstances, less charges for taxes and similar fees, which will be for the account of the Philippine Government. United States forces' costs shall be equal to their pro rata share of the use of such utilities.;

2. The Parties recognize that it may be necessary for United States forces to use the radio spectrum. The Philippines authorizes the United States to operate its own telecommunication systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union ("ITU")). This shall include the right to utilize such means and services as required to ensure the full ability to operate telecommunication systems, and the right to use all necessary radio spectrum allocated for this purpose. Consistent with the 1992 Constitution and Convention of the ITU, United States forces shall not interfere with frequencies in use by local operators. Use of the radio spectrum shall be free of cost to the United States.

^[71] Agreement between the Government of the Philippines and the Government of the United States of America on Enhanced Defense Cooperation (2014), art. Ill (4).

^[72] November 8, 2010, As Amended Through June 15, 2015 (visited November 5, 2015):

1. Scope

The Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms sets forth standard US military and associated terminology to encompass the joint activity of the Armed Forces of the United States. These military and associated terms, together with their definitions, constitute approved Department of Defense (DOD) terminology for general use by all DOD components.

2. Purpose

This publication supplements standard English-language dictionaries and standardizes military and associated terminology to improve communication and mutual understanding within DOD, with other federal agencies, and among the United States and its allies.

^[73] This treaty contains a Supplementary Agreement on Installations and Military operating Procedures

(Supplementary Agreement Number Two), which provides:




The Government of the Republic of the Philippines authorizes the Government of the United States of America to station United States forces in the Philippines, and in connection therewith to use certain installations in Subic Naval Base, which is a Philippine military base, designated training areas and air spaces, and such other areas as may be mutually agreed, for the following purposes and under the terms and conditions stipulated in this Agreement:

a. training of United States forces and joint training of United States forces with Philippine forces;

b. servicing, provisioning, maintenance, support and accommodation of United States forces;

c. logistics supply and maintenance points for support of United States forces;

d. transit point for United States forces and United States military personnel;

e. projecting or operating United States forces from the installations under conditions of peace or war, provided that military combat operations of United States forces directly launched from installations on the base authorized for United States use shall be subject to prior approval of the Government of the Philippines;

f. such other purposes, consistent with this Agreement, as may be mutually agreed.

^[74] See Gonzales v, Hechanova, 118 Phil. 1065 (1963) [Per J. Concepcion, En Banc] and Ichong v. Hernandez, 101 Phil. 1155 (1957) [Per J. Labrador, En Banc].

^[75] Memorandum for Petitioners Bayan, et al., pp. 3-4.

^[76] Memorandum for Petitioners Bayan, et al., pp. 19-25; Memorandum for Petitioners Saguisag, pp.11— 17; Memorandum for Petitioners-in-Intervention KMU, pp. 5-6.

^[77] Memorandum for Petitioners Saguisag, pp.11-17.

^[78] 

Memorandum for Respondents, pp. 4-5.

^[79] Id. at 6.

^[80] Id. at 7.

^[81] Id. at 8.

^[82] Const., art. VIII, sec. 1.

^[83] 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

^[84] Id. at 157-159 (1936) [Per J. Laurel, En Banc].

^[85] See Francisco, Jr. v. House of Representatives, 460 Phil. 830, 892 (2003) [Per J. Carpio-Morales, En Banc].

^[86] Lozano v. Nograles, 607 Phil. 334, 340 (2009) [Per C.J. Puno, En Bane]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 535 [Per J. Abad, En Banc].

^[87] Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> [Per J. Leonen, En Banc].

^[88] Id.

^[89] Information Technology Foundation of the Philippines v. COMELEC, 499 Phil. 281, 304 (2005) [Per J. Panganiban, En Bane], citing Republic v. Tan, G.R. No. 145255, 426 SCRA 485, March 30, 2004 [Per J. Carpio-Morales, Third Division]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 534 [Per J. Abad, En Banc]; and In the Matter of: Save the Supreme Court Judicial Independence and Fiscal Autonomy Movement v. Abolition of Judiciary Development Fund (JDF) and Reduction of Fiscal Autonomy, UDK-15143, January 21, 2015 [Per J. Leonen, En Banc].

^[90] Information Technology Foundation of the Philippines v. COMELEC, 499 Phil. 281, 305 (2005) [Per J. Panganiban, En Banc], citing Vide: De Lumen v. Republic, 50 OG No. 2, February 14, 1952, 578. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335,February 18, 2014, 716 SCRA 237, 534-535 [Per J. Abad, En Banc]; and In the Matter of: Save the Supreme Court Judicial Independence and Fiscal Autonomy Movement v. Abolition of Judiciary Development Fund (JDF) and Reduction of Fiscal Autonomy, UDK-15143, January 21, 2015 [Per J. Leonen, En Banc].

^[91] J. Leonen, Dissenting Opinion in Imbong v. Ochoa, G.R. Nos. 204819, April 8, 2014, 721 SCRA 146, 731 [Per J. Mendoza, En Bane], citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Bane]; and Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429 (1998) [Per J. Panganiban, First Division].

^[92] Id.

^[93] Id.

^[94] Id. at 721.

^[95] G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J. Perlas-Bernabe, En Banc].

^[96] Republic of the Philippines v. Roque, G.R. No. 204603, September 24, 2013, 706 SCRA 273, 284-285 [Per J. Perlas-Bernabe, En Bane]. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716 SCRA 237, 536-537 [Per J. Abad, En Banc].

^[97] Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management, 686 Phil. 357 [Per J. Mendoza, En Banc].

^[98] Id. at 369, citing Lozano v. Nograles, 607 Phil. 334 (2009) [Per C.J. Puno, En Banc], in turn citing Guingona, Jr. v. Court of Appeals, 354 Phil. 415,427-428 [Per J. Panganiban, First Division].

^[99] 103 Phil. 1051(1957) [Per J. Concepcion, En Banc].

^[100] Id. at 1065-1067.

^[101] 460 Phil. 830 (2003) [Per J. Carpio-Morales, En Banc].

^[102] Id. at 910-912 (2003) [Per J. Carpio-Morales, En Banc], See also Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015

[Per J. Leonen, En Banc].

^[103] G.R. No. 205728, January 21, 2015 [Per J. Leonen, En Banc].

^[104] Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 [Per J. Leonen, En Banc].

^[105] J. Leonen, Concurring Opinion in Garcia v. Drilon, G.R, No. 179267, June 25, 2013, 699 SCRA 352 [Per J. Perlas-Bernabe, En Banc].

^[106] Id. at 493.

^[107] Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303 (2005) [Per J. Puno, En Bane].

^[108] CONST., art. VIII, sec. 1 and 5(2).