Si Module 2 Part 2.docx

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners, vs. OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents. DECISION PUNO J.: This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. The Rome Statute established the International Criminal Court which "shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute.2 The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.3 Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.4 Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.5 The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence. A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.6 We have held that to be given due course, a petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to

be performed.7 The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8 The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law who are suing as taxpayers. The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.10 We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution."11 Thus, 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. The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the Senate. We now go to the substantive issue. The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President.

We rule in the negative. In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations.12 As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.13 In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that "no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided: 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 xxx. 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. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.14 By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth.15 In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. We disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counterproposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even "collapse" in case the parties are unable to come to an agreement on the points under consideration. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state

in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. xxx The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.16 [emphasis supplied] Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads: Sec. 7.Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. — The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows: A. Executive Agreements. i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them. ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action. B. Treaties. i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the

Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate. ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force. Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense.19 It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.21 Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,22 such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.23 The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. IN VIEW WHEREOF, the petition is DISMISSED. SO ORDERED.

G.R. No. L-14279

October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners, vs. EASTERN SEA TRADING, respondent. CONCEPCION, J.: Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs. Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from Hong Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the Government and — the goods having been, in the meantime, released to the consignees on surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof — directing that the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice. On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27, 1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of the decision of the Court of Tax Appeals. The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central Bank license and a certificate authorizing the importation or release of the goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and forfeiture of the goods imported from Japan cannot be justified under Executive Order No. 328,1 not only because the same seeks to implement an executive agreement2 — extending the effectivity of our3 Trades and Financial Agreements4 with Japan — which (executive agreement), it believed, is of dubious validity, but, also, because there is no governmental agency authorized to issue the import license required by the aforementioned executive order. The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to maintain our monetary stability and to preserve the international value of our currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act — authorizing the bank to issue such rules and regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the powers assigned to the Monetary Board and to the Central Bank — connote the authority to regulate no-dollar imports, owing to the influence and effect that the same may

and do have upon the stability of our peso and its international value. The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence. 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. xxx

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. . . 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, mostfavored-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. xxx

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Agreements with respect to the registration of trademarks have been concluded by the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded by the Postmaster General with various countries under authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the lines of the one with Rumania previously referred to, providing for most-favored-nation treatment in customs and related matters have been entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it. xxx

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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. xxx

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Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol.

15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390407). (Emphasis supplied.) In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of Trade Agreement Acts": Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments — treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements — whether denominated executive agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready ascertainment. 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-agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation." (39 Columbia Law Review, pp. 651, 755.) The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement, made without the concurrence of two-thirds (2/3) of the Senate of the United States. Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue the aforementioned licenses was not vested exclusively upon the Import Control Commission or Administration. Executive Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines or the Import Control Administration" or Commission. Indeed, the latter was created only to perform the task of implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and the Central Bank, even if the aforementioned Executive Order had been silent thereon. WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of the

Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so ordered.

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents. x-----------------------x G.R. No. 138572

October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents. x-----------------------x G.R. No. 138587

October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.

The antecedents unfold. On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which formalized, among others, the use of installations in the Philippine territory by United States military personnel. To further strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft.1 In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines.2 With the expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense and security relationship between the Philippines and the United States of America continued pursuant to the Mutual Defense Treaty. 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 to a final series of conferences and negotiations3 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.

x-----------------------x G.R. No. 138680

October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents. x-----------------------x G.R. No. 138698

October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZONAVENCEÑA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents. DECISION BUENA, J.: Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the Philippines and the United States of America -the Visiting Forces Agreement.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. 4 On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines,5 the Instrument of Ratification, the letter of the President6 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 Blas 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.7 On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438 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) vote9 of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.10 On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard. The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines, and is quoted in its full text, hereunder: "Article Definitions

I

"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 ordinary residents 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. "Article Respect for Law

II

"It is the duty of the 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.

"5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the United States authorities shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said person outside of the Philippines. "Article IV Driving and Vehicle Registration "1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate United States authority to United States personnel for the operation of military or official vehicles. "2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate markings. "Article Criminal Jurisdiction

V

"1. Subject to the provisions of this article:

III

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

"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.

(b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines.

"Article Entry and Departure

"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 presented on demand, shall be required in respect of United States military personnel who enter the Philippines: "(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or grade and service number (if any), branch of service and photograph; "(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit and identifying the individual or group as United States military personnel; and "(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States aircraft or United States vessels or cargoes thereon shall be conducted by the United States commanding officer in accordance with the international health regulations as promulgated by the World Health Organization, and mutually agreed procedures. "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.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States. (b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the Philippines. (c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means: (1) treason; (2) sabotage, espionage or violation of any law relating to national defense. "3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply: (a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article. (b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to. (1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official duty. (c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case. (d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request. (e) When the United States military commander determines that an offense charged by authorities of the Philippines against United states personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify the Government of the Philippines of the actions taken. (f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other government as soon as possible. (g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction. "4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each other in the arrest of United States personnel in the Philippines and in handling them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article. "5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly notify United States military authorities of the arrest or detention of any United States personnel. "6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in

time for any investigative or judicial proceedings relating to the offense with which the person has been charged in extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. "7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense. "8. When United States personnel have been tried in accordance with the provisions of this Article and have been acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military authorities from trying United States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by Philippine authorities. "9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled: (a) To a prompt and speedy trial; (b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defense; (c) To be confronted with witnesses against them and to cross examine such witnesses; (d) To present evidence in their defense and to have compulsory process for obtaining witnesses; (e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines; (f) To have the service of a competent interpreter; and (g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine laws, excludes persons who have no role in the proceedings. "10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States Personnel serving sentences in the Philippines shall have the right to visits and material assistance. "11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious courts.

"Article Claims

VI

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues, while in the Philippines. Aircraft operated by or for the United States armed forces shall observe local air traffic control regulations while in the Philippines. Vessels owned or operated by the United States solely on United States Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports.

"1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance and leases of military equipment, both governments waive any and all claims against each other for damage, loss or destruction to property of each other’s armed forces or for death or injury to their military and civilian personnel arising from activities to which this agreement applies. "2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the United States Government, in accordance with United States law regarding foreign claims, will pay just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel, or otherwise incident to the non-combat activities of the United States forces. "Article Importation and Exportation

VII

"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. The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar charges which would otherwise be assessed upon such property after importation into, or acquisition within, the Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that disposition of such property in the Philippines to persons or entities not entitled to exemption from applicable taxes and duties shall be subject to payment of such taxes, and duties and prior approval of the Philippine Government. "2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel may be imported into and used in the Philippines free of all duties, taxes and other similar charges during the period of their temporary stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges may only be made upon prior approval of the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The exportation of such property and of property acquired in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and other similar charges. "Article Movement of Vessels and Aircraft

VIII

"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.

"Article Duration and Termination

IX

"This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement 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." Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement. We have simplified the issues raised by the petitioners into the following: I Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA? II Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution? III Does the VFA sovereignty?

constitute

an

abdication

of

Philippine

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel? b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher? IV Does the VFA violate: a. the equal protection clause under Section 1, Article III of the Constitution? b. the Prohibition against nuclear weapons under Article II, Section 8? c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment, materials supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed Forces? LOCUS STANDI At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have not shown any interest in the case, and that petitioners failed to substantiate that

they have sustained, or will sustain direct injury as a result of the operation of the VFA. 12 Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance which justifies their standing.13 A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way." He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.14 In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending powers.15 On this point, it bears stressing that a taxpayer’s suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation.16 Thus, in Bugnay Const. & Development Corp. vs. Laron17 , we held: "x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public." Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA. Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal standing of a member of the Senate and the House of Representatives to question the validity of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners’ standing as members of Congress, in the absence of a clear showing of any direct injury to their person or to the institution to which they belong. Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners failed however to sufficiently show that they have in fact suffered direct injury. In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors authorizing its National President to commence the present action.19 Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,20 where we had occasion to rule: "x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by

President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that ‘transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.’ We have since then applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring Supplied) This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs. Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 where we emphatically held: "Considering however the importance to the public of the case at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. x x x" Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others’ acts,25 this Court nevertheless resolves to take cognizance of the instant petitions. APPLICABLE CONSTITUTIONAL PROVISION One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads: "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." Section 25, Article XVIII, 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." Section 21, Article VII deals with treatise 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 treatise or international agreements and applies to any form of treaty

with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All treaties or international 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. It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. 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 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. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular enactment.26 In Leveriza vs. Intermediate Appellate Court,27 we enunciated: "x x x that another basic principle of statutory construction mandates that general legislation must give way to a special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

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 hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex non distinguit nec 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,28 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 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."29 (Underscoring Supplied) 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. 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. Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators.30Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was made,31 will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty. 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. Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII, means that the VFA should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it should not be considered merely an executive agreement by the United States. In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United 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.32 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,33 is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.34 Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.35 To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation."36 There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.37 Article 2(2) of the Vienna Convention provides that "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 the State." Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers.38 International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.39 In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,40 we had occasion to pronounce: "x x x 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 these has never been seriously questioned by our courts. "x x x x x x x x x "Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V,

pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours) The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highlyinstructive: "MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is entirely their concern under their own laws. FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty."41 The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA.42 For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution. Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed.43 A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.44 In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.45 With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,46 declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation.47 Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law. Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good

faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty."48 Equally important is Article 26 of the convention which provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.49 NO GRAVE ABUSE OF DISCRETION In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution. On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.50 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. In many ways, the President is the chief architect of the nation’s foreign policy; his "dominance in the field of foreign relations is (then) conceded."51 Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson describes, is "executive altogether."52 As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.53 Consequently, the acts or judgment calls of the President involving the VFAspecifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion. It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same to the Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred,

much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner. For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions such as those which arise in the field of foreign relations.54 The High Tribunal’s function, as sanctioned by Article VIII, Section 1, "is merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing… (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power…It has no power to look into what it thinks is apparent error."55 As to the power to concur with treaties, the constitution lodges the same with the Senate alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law. For the role of the Senate in relation to treaties is essentially legislative in character;57 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. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire. In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of government may exercise the powers exclusively and essentially conferred to it by law. WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED. SO ORDERED.

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents. ---------------------------------------SANLAKAS and PARTIDO NG MANGGAGAWA, petitionersintervenors, vs. GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents. DE LEON, JR., J.: This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. The facts are as follows: Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." 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,1 a bilateral defense agreement entered into by the Philippines and the United States in 1951. Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in 1999. The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of lives. On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise.2 They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention on February 11, 2002. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs,

presented the Draft Terms of Reference (TOR).3Five days later, he approved the TOR, which we quote hereunder: 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 selfdefense. 9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. II. EXERCISE LEVEL 1. TRAINING a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations. 2. ADMINISTRATION & LOGISTICS a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. b. 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. c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRS a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. c. 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. Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4 Petitioners Lim and Ersando present the following arguments: I THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM. BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951. II NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN

PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON". Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO. In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree. It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts. Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General asks that we accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine armed forces. Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case: Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule: 'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then applied the exception in many other cases. [citation omitted] This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically held: Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has

brushed aside technicalities of procedure and has taken cognizance of this petition. xxx' Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.

General rule of interpretation 1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus 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:

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition.6 Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference.

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party . 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). 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; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm. The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] 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. 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 V FA 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.8 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."9 All other activities, in other words, are fair game. We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state: SECTION 3. INTERPRETATION OF TREATIES Article 31

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 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 obscure; or

the

meaning

ambiguous

or

(b) leads to a result which is manifestly absurd unreasonable. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention , [t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are

relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.10 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.

state, or in any other manner inconsistent with the Purposes of the United Nations. xxx

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit: Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. xxx

xxx

xxx

xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any

xxx

xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that: xxx

xxx

xxx

xxx

SEC. 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. xxx

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 V FA 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 I" 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."11 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.

xxx

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SEC. 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 selfdetermination. SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country. xxx

xxx

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The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state: 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. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements. A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit: xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation. This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor

the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights. From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."15 Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII: The Supreme Court shall have the following powers: xxx

xxx

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xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in: (A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. xxx

xxx

xxx

xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17 xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question." In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory. Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take judicial notice of the events transpiring down south,18 as reported from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or electronic reports per se, not because of any 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. As a result, we cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue I make factual findings on matters well beyond our immediate perception, and this we are understandably loath to do. It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur with the Solicitor General that the present subject matter is not a fit

topic for a special civil action for certiorari. We have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility."19 In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20 Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on our part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court. SO ORDERED.

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents. x-----------------------x G.R. No. 212444 BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTYLIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners, vs. DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, Respondents. x-----------------------x KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONSKILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention, RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention. DECISION SERENO, J.: The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.). Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they entered into EDCA with the U.S.,2 claiming that the instrument violated multiple constitutional provisions.3 In reply, respondents argue that petitioners lack standing to bring the suit. To support the legality of their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents.4 A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the constitutional powers and roles of the President and the Senate in respect of the above issues. A more detailed discussion of these powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA A. The Prime Duty of the State and the Consolidation of Executive Power in the President Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos. - Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5 The 1987 Constitution has "vested the executive power in the President of the Republic of the Philippines."6 While the vastness of the executive power that has been consolidated in the person of the President cannot be expressed fully in one provision, the Constitution has stated the prime duty of the government, of which the President is the head: The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.7 (Emphases supplied) B. The duty to protect the territory and the citizens of the Philippines, the power to call upon the people to defend the State, and the President as Commander-in-Chief The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole territory of the Philippines in accordance with the constitutional provision on national territory. Hence, the President of the Philippines, as the sole repository of executive power, is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas; and the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions.8 To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines (AFP),9 which is the protector of the people and the state. The AFP's role is to secure the sovereignty of the State and the integrity of the national territory.10 In addition, the Executive is constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote the general welfare.11 In recognition of these powers, Congress has specified that the President must oversee, ensure, and reinforce our defensive capabilities against external and internal threats12 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.

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

C. The power and duty to conduct foreign relations

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

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. D. The relationship between the two major presidential functions and the role of the Senate Clearly, the power to defend the State and to act as its representative in the international sphere inheres in the person of the President. This power, however, does not crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, the Senate has a role in ensuring that treaties or international agreements the President enters into, as contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its members. Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang Pambansa,19except in instances wherein the President "may enter into international treaties or agreements as the national welfare and interest may require."20 This left a large margin of discretion that the President could use to bypass the Legislature altogether. This was a departure from the 1935 Constitution, which explicitly gave the President the power to enter into treaties only with the concurrence of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the Senate's power22 and, with it, the legislative's traditional role in foreign affairs.23 The responsibility of the President when it comes to treaties and international agreements under the present Constitution is therefore shared with the Senate. This shared role, petitioners claim, is bypassed by EDCA. II. HISTORICAL ANTECEDENTS OF EDCA

When it became clear that the American forces intended to impose colonial control over the Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war against the U.S.27 The Filipinos were ultimately defeated in the Philippine-American War, which lasted until 1902 and led to the downfall of the first Philippine Republic.28 The Americans henceforth began to strengthen their foothold in the country.29 They took over and expanded the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30 When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested the desire to maintain military bases and armed forces in the country.31 The U.S. Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the proposed constitution of an independent Philippines recognize the right of the U.S. to maintain the latter's armed forces and military bases.32 The Philippine Legislature rejected that law, as it also gave the U.S. the power to unilaterally designate any part of Philippine territory as a permanent military or naval base of the U.S. within two years from complete independence.33 The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law provided for the surrender to the Commonwealth Government of "all military and other reservations" of the U.S. government in the Philippines, except "naval reservations and refueling stations."34 Furthermore, the law authorized the U.S. President to enter into negotiations for the adjustment and settlement of all questions relating to naval reservations and fueling stations within two years after the Philippines would have gained independence.35 Under the Tydings-McDuffie Act, the U.S. President would proclaim the American withdrawal and surrender of sovereignty over the islands 10 years after the inauguration of the new government in the Philippines.36 This law eventually led to the promulgation of the 1935 Philippine Constitution. The original plan to surrender the military bases changed.37 At the height of the Second World War, the Philippine and the U.S. Legislatures each passed resolutions authorizing their respective Presidents to negotiate the matter of retaining military bases in the country after the planned withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into the Treaty of General Relations, in which the U.S. relinquished all control and sovereignty over the Philippine Islands, except the areas that would be covered by the American military bases in the country.39 This treaty eventually led to the creation of the post-colonial legal regime on which would hinge the continued presence of U.S. military forces until 1991: the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951.40 B. Former legal regime on the presence of U.S. armed forces in the territory of an independent Philippines (1946-1991) Soon after the Philippines was granted independence, the two countries entered into their first military arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The Senate concurred on the premise of "mutuality of security interest,"42 which provided for the presence and operation of 23 U.S. military bases in the Philippines for 99 years or until the year 2046.43 The treaty also obliged the Philippines to negotiate with the U.S. to allow the latter to expand the

existing bases or to acquire new ones as military necessity might require.44 A number of significant amendments to the 1947 MBA were made.45 With respect to its duration, the parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99 years to a total of 44 years or until 1991.46 Concerning the number of U.S. military bases in the country, the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of 17 U.S. military bases covering a total area of 117,075 hectares.47 Twelve years later, the U.S. returned Sangley Point in Cavite City through an exchange of notes.48 Then, through the RomuloMurphy 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 RomualdezArmacost 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 Agreement55 with the U.S. This executive agreement established the conditions under which U.S. military assistance would be granted to the Philippines,56 particularly the provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the latter's defense forces.57 An exchange of notes in 1953 made it clear that the agreement would remain in force until terminated by any of the parties.58 To further strengthen their defense and security relationship,59 the Philippines and the U.S. next entered into the MDT in 1951. Concurred in by both the Philippine 60 and the U.S.61 Senates, the treaty has two main features: first, it allowed for mutual assistance in maintaining and developing their individual and collective capacities to resist an armed attack;62 and second, it provided for their mutual self-defense in the event of an armed attack against the territory of either party.63 The treaty was premised on their recognition that an armed attack on either of them would equally be a threat to the security of the other.64 C. Current legal regime on the presence of U.S. armed forces in the country In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated for a possible renewal of their defense and security relationship.65 Termed as the Treaty of Friendship, Cooperation and Security, the countries sought to recast their military ties by providing a new framework for their defense cooperation and the use of Philippine installations.66 One of the proposed provisions included an arrangement in which U.S. forces would be granted the use of certain installations within the Philippine naval base in Subic.67 On 16 September 1991, the Senate rejected the proposed treaty.68 The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-scale joint military exercises.69In 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.82 The phrase "logistics support and services" includes billeting, operations support, construction and use of temporary structures, and storage services during an approved activity under the existing military arrangements.83 Already extended twice, the agreement will last until 2017.84 D. The Enhanced Defense Cooperation Agreement EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed Locations" in the country. It was not transmitted to the Senate on the executive's understanding that to do so was no longer necessary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming the completion of all necessary internal requirements for the agreement to enter into force in the two countries.86 According to the Philippine government, the conclusion of EDCA was the result of intensive and comprehensive negotiations in the course of almost two years.87 After eight rounds of negotiations, the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified during the oral arguments90 that the Philippine and the U.S. governments had yet to agree formally on the specific sites of the Agreed Locations mentioned in the agreement. Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They primarily argue that it should have been in the form of a treaty concurred in by the Senate, not an executive agreement. On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105.91 The resolution expresses the "strong sense"92 of the Senators that for EDCA to become valid and effective, it must first be transmitted to the Senate for deliberation and concurrence. III. ISSUES Petitioners mainly seek a declaration that the Executive Department committed grave abuse of discretion in entering into EDCA in the form of an executive agreement. For this reason, we cull the issues before us: A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and treaties IV. DISCUSSION A. Whether the essential requisites for judicial review have been satisfied Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating the Constitution. They stress that our fundamental law is explicit in prohibiting the presence of foreign military forces in the country, except under a treaty concurred in by the Senate. Before this Court may begin to analyze the constitutionality or validity of an official act of a coequal branch of government, however, petitioners must show that they have satisfied all the essential requisites for judicial review.93 Distinguished from the general notion of judicial power, the power of judicial review specially refers to both the authority and the duty of this Court to determine whether a branch or an instrumentality of government has acted beyond the scope of the latter's constitutional powers.94 As articulated in Section 1, Article VIII of the Constitution, the power of judicial review involves the power to resolve cases in which the questions concern the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating power" as part of the system of checks and balances under the Constitution. In our fundamental law, the role of the Court is to determine whether a branch of government has adhered to the specific restrictions and limitations of the latter's power:96 The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. xxxx As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. x x x. In our case, this moderating power is granted, if not expressly, by

clear implication from section 2 of article VIII of [the 1935] Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. x x x x. (Emphases supplied) The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has been extended to the determination of whether in matters traditionally considered to be within the sphere of appreciation of another branch of government, an exercise of discretion has been attended with grave abuse.97 The expansion of this power has made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."98 This moderating power, however, must be exercised carefully and only if it cannot be completely avoided. We stress that our Constitution is so incisively designed that it identifies the spheres of expertise within which the different branches of government shall function and the questions of policy that they shall resolve.99 Since the power of judicial review involves the delicate exercise of examining the validity or constitutionality of an act of a coequal branch of government, this Court must continually exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally appointed actor with that of its own.100 Even as we are left with no recourse but to bare our power to check an act of a coequal branch of government - in this case the executive - we must abide by the stringent requirements for the exercise of that power under the Constitution. Demetria v. Alba101 and Francisco v. House of Representatives102 cite the "pillars" of the limitations on the power of judicial review as enunciated in the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley Authority.103 Francisco104 redressed these "pillars" under the following categories: 1. That there be absolute necessity of deciding a case 2. That rules of constitutional law shall be formulated only as required by the facts of the case 3. That judgment may not be sustained on some other ground 4. That there be actual injury sustained by the party by reason of the operation of the statute 5. That the parties are not in estoppel 6. That the Court constitutionality

upholds

the presumption

of

(Emphases supplied) These are the specific safeguards laid down by the Court when it exercises its power of judicial review.105 Guided by these pillars, it may invoke the power only when the following four stringent requirements are satisfied: (a) there is an actual case or controversy; (b) petitioners possess locus standi; (c) the question of constitutionality is raised at the earliest opportunity;

and (d) the issue of constitutionality is the lis mota of the case.106 Of these four, the first two conditions will be the focus of our discussion. 1. Petitioners have shown the presence of an actual case or controversy. The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have not been deprived of the opportunity to invoke the privileges of the institution they are representing. It contends that the nonparticipation of the Senators in the present petitions only confirms that even they believe that EDCA is a binding executive agreement that does not require their concurrence. It must be emphasized that the Senate has already expressed its position through SR 105.108 Through the Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to participate in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional role indicates that an actual controversy - albeit brought to the Court by non-Senators, exists. Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as basis for finding that there is no actual case or controversy before us. We point out that the focus of this requirement is the ripeness for adjudication of the matter at hand, as opposed to its being merely conjectural or anticipatory.109 The case must involve a definite and concrete issue involving real parties with conflicting legal rights and legal claims admitting of specific relief through a decree conclusive in nature.110 It should not equate with a mere request for an opinion or advice on what the law would be upon an abstract, hypothetical, or contingent state of facts.111 As explained in Angara v. Electoral Commission:112 [The] power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Emphases supplied) We find that the matter before us involves an actual case or controversy that is already ripe for adjudication. The Executive Department has already sent an official confirmation to the U.S. Embassy that "all internal requirements of the Philippines x x x have already been complied with."113 By this exchange of diplomatic notes, the Executive Department effectively performed the last act required under Article XII(l) of EDCA before the agreement entered into force. Section 25, Article XVIII of the Constitution, is clear that the presence of foreign military forces in the country shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an official act by the Executive Department that led to the entry into force of an executive agreement was sufficient to satisfy the actual case or controversy requirement. 2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues involving matters of transcendental importance. The question of locus standi or legal standing focuses on the determination of whether those assailing the governmental act have the right of appearance to bring the matter to the court for adjudication.114 They must show that they have a personal and substantial interest in the case, such that they have sustained or are in immediate danger of sustaining, some direct injury as a consequence of the enforcement of the challenged governmental act.115 Here, "interest" in the

question involved must be material - an interest that is in issue and will be affected by the official act - as distinguished from being merely incidental or general.116 Clearly, it would be insufficient to show that the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite way.117 They must show that they have a particular interest in bringing the suit, and that they have been or are about to be denied some right or privilege to which they are lawfully entitled, or that they are about to be subjected to some burden or penalty by reason of the act complained of.118 The reason why those who challenge the validity of a law or an international agreement are required to allege the existence of a personal stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."119 The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body has the requisite standing, but considering that it has not formally filed a pleading to join the suit, as it merely conveyed to the Supreme Court its sense that EDCA needs the Senate's concurrence to be valid, petitioners continue to suffer from lack of standing. In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the requirement of having to establish a direct and personal interest if they show that the act affects a public right.120 In arguing that they have legal standing, they claim121 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, petitioners122 aver that the implementation of EDCA would result in the unlawful use of public funds. They emphasize that Article X(1) refers to an appropriation of funds; and that the agreement entails a waiver of the payment of taxes, fees, and rentals. During the oral arguments, however, they admitted that the government had not yet appropriated or actually disbursed public funds for the purpose of implementing the agreement.123 The OSG, on the other hand, maintains that petitioners cannot sue as taxpayers.124Respondent 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 claim129 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 counters130 that petitioners do not have any legal standing to file the suits concerning the lack of Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and international agreements is an "institutional prerogative" granted by the Constitution to the Senate. Accordingly, the OSG argues that in case of an allegation of impairment of that power, the injured party would be the Senate as an institution or any of its incumbent members, as it is the Senate's constitutional function that is allegedly being violated. The legal standing of an institution of the Legislature or of any of its Members has already been recognized by this Court in a number of cases.131 What is in question here is the alleged impairment of the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of, the Legislature or an institution thereof.132 In the case of suits initiated by the legislators themselves, this Court has recognized their standing to question the validity of any official action that they claim infringes the prerogatives, powers, and privileges vested by the Constitution in their office.133 As aptly explained by Justice Perfecto in Mabanag v. Lopez Vito:134 Being members of Congress, they are even duty bound to see that the latter act within the bounds of the Constitution which, as representatives of the people, they should uphold, unless they are to commit a flagrant betrayal of public trust. They 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. Petitioners138 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, insists139 that petitioners cannot raise the mere fact that the present petitions involve matters of transcendental importance in order to cure their inability to comply with the constitutional requirement of standing. Respondent bewails the overuse of "transcendental importance" as an exception to the traditional requirements of constitutional litigation. It stresses that one of the purposes of these requirements is to protect the Supreme Court from unnecessary litigation of constitutional questions. In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal standing, especially when paramount interest is involved. Indeed, when those who challenge the official act are able to craft an issue of transcendental significance to the people, the Court may exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners to show that they have been personally injured by the operation of a law or any other government act. While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that not every other case, however strong public interest may be, can qualify as an issue of transcendental importance. Before it can be impelled to brush aside the essential requisites for exercising its power of judicial review, it must at the very least consider a number of factors: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party that has a more direct and specific interest in raising the present questions.141 An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows that petitioners have presented serious constitutional issues that provide ample justification for the Court to set aside the rule on standing. The transcendental importance of the issues presented here is rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter mechanism required before foreign military troops, facilities, or bases may be allowed in the country. The DFA has already confirmed to the U.S. Embassy that "all internal requirements of the Philippines x x x have already been complied with."142 It behooves the Court in this instance to take a liberal stance towards the rule on standing and to determine forthwith whether there was grave abuse of discretion on the part of the Executive Department. We therefore rule that this case is a proper subject for judicial review. B. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and treaties Issues B and C shall be discussed together infra. 1. The role of the President as the executor of the law includes the duty to defend the State, for which purpose he may use that power in the conduct of foreign relations Historically, the Philippines has mirrored the division of powers in the U.S. government. When the Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted with powers categorized as executive, legislative, and judicial, and divided among these three great branches.143 By this division, the law implied that the divided powers cannot be exercised except by the department given the power.144 This divide continued throughout the different versions of the Philippine Constitution and specifically vested the supreme executive power in the Governor-General of the Philippines,145 a position inherited by the President of the Philippines when the country attained independence. One of the principal functions of the supreme executive is the responsibility for the faithful execution of the laws as embodied by the oath of office.146 The oath of the President prescribed by the 1987 Constitution reads thus: I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God. (In case of affirmation, last sentence will be omitted.)147 (Emphases supplied) This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a separate grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty in no uncertain terms and includes it in the provision regarding the President's power of control over the executive department, viz: The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the President. In the 1973 Constitution, for instance, the provision simply gives the President control over the ministries.149 A similar language, not in the form of the President's oath, was present in the 1935 Constitution, particularly in the enumeration of executive functions.150 By 1987, executive power was codified not only in the Constitution, but also in the Administrative Code:151 SECTION 1.Power of Control. - The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied) Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the other executive functions. These functions include the faithful execution of the law in autonomous regions;152 the right to prosecute crimes;153 the implementation of transportation projects;154 the duty to ensure compliance with treaties, executive agreements and executive orders;155 the authority to deport undesirable aliens;156 the conferment of national awards under the President's jurisdiction;157 and the overall administration and control of the executive department.158 These obligations are as broad as they sound, for a President cannot function with crippled hands, but must be capable of securing the rule of law within all territories of the Philippine Islands and be empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the President's

power to adopt implementing rules and regulations for a law it has enacted.159 More important, this mandate is self-executory by virtue of its being inherently executive in nature.160 As Justice Antonio T. Carpio previously wrote,161 [i]f the rules are issued by the President in implementation or execution of self-executory constitutional powers vested in the President, the rule-making power of the President is not a delegated legislative power. The most important selfexecutory constitutional power of the President is the President's constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the President can execute the law without any delegation of power from the legislature. The import of this characteristic is that the manner of the President's execution of the law, even if not expressly granted by the law, is justified by necessity and limited only by law, since the President must "take necessary and proper steps to carry into execution the law."162 Justice George Malcolm states this principle in a grand manner:163 The executive should be clothed with sufficient power to administer efficiently the affairs of state. He should have complete control of the instrumentalities through whom his responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be in practice a bad government." The mistakes of State governments need not be repeated here. xxxx Every other consideration to one side, this remains certain - The Congress of the United States clearly intended that the Governor-General's power should be commensurate with his responsibility. The Congress never intended that the GovernorGeneral 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 treaties167 was never expressed or implied. Rather, the appropriate reading of the preceding analysis shows that the point being elucidated

is the reality that the President's duty to execute the laws and protect the Philippines is inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued with both concerns to the full extent of his powers, subject only to the limits supplied by law. In other words, apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner of execution by the President must be given utmost deference. This approach is not different from that taken by the Court in situations with fairly similar contexts. Thus, the analysis portrayed by the dissent does not give the President authority to bypass constitutional safeguards and limits. In fact, it specifies what these limitations are, how these limitations are triggered, how these limitations function, and what can be done within the sphere of constitutional duties and limitations of the President. Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign relations power of the President should not be interpreted in isolation.168 The analysis itself demonstrates how the foreign affairs function, while mostly the President's, is shared in several instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international agreements entered into prior to the Constitution and on the presence of foreign military troops, bases, or facilities. In fact, the analysis devotes a whole subheading to the relationship between the two major presidential functions and the role of the Senate in it. This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not novel to the Court. The President's act of treating EDCA as an executive agreement is not the principal power being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary analysis is in reference to the expansive power of foreign affairs. We have long treated this power as something the Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo: To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its 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 Bavan v. Executive Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion: . . . The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness .... It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences.169 (Emphases supplied) Understandably, this Court must view the instant case with the same perspective and understanding, knowing full well the constitutional and legal repercussions of any judicial overreach. 2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the President's dual role as defender of the State and as sole authority in foreign relations. Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. The initial limitation is found in Section 21 of the provisions on the Executive Department: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The specific limitation is given by Section 25 of the Transitory Provisions, the full text of which reads as follows: SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic requirements of a treaty under Section 21 of Article VII. This means that both provisions must be read as additional limitations to the President's overarching executive function in matters of defense and foreign relations. 3. The President, however, may enter into an executive agreement on foreign military bases, troops, or facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or facilities; or (b) it merely aims to implement an existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution: SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Emphases supplied) In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty" duly concurred in by the Senate. They stress that the Constitution is unambigous in mandating the transmission to the Senate of all international agreements concluded after the expiration of the MBA in 1991 agreements that concern the presence of foreign military bases, troops, or facilities in the country. Accordingly, petitioners maintain that the Executive Department is not given the choice to conclude agreements like EDCA in the form of an executive agreement. This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against and 2 abstaining says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty for concurrence by at least two-thirds of all its members. The Senate cites two constitutional provisions (Article VI, Section 21 and Article 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."

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:

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.

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)

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.

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

First, the concept of "executive agreement" is so wellentrenched 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

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 wellestablished in this jurisdiction.193 That power has been alluded to in our present and past Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and during the deliberations of the Constitutional Commission.197 They cover a wide array of subjects with varying scopes and purposes,198 including those that involve the presence of foreign military forces in the country.199 As the sole organ of our foreign relations200 and the constitutionally assigned chief architect of our foreign policy,201the President is vested with the exclusive power to conduct and manage the country's interface with other states and governments. Being the principal representative of the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations with other states and governments; negotiates and enters into international agreements; promotes trade, investments, tourism and other economic relations; and settles international disputes with other states.202 As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into agreements with other states, including the prerogative to conclude binding executive agreements that do not require further Senate concurrence. The existence of this presidential power203 is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its exercise. As expressed below, executive agreements are among those official governmental acts that can be the subject of this Court's power of judicial review: (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executiv e 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 agreementsmentioned in Eastern Sea Trading is not cast in stone. x x x. As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier: . . . It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign governments. . . . They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc .... (Emphases Supplied) One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a lack of Senate concurrence.206 This distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz: Treaties are formal documents which require ratification with the approval of two-thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. xxxx [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. (Emphases Supplied) That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on whether the general term "international agreement" included executive agreements, and whether it was necessary to include an express proviso that would exclude executive agreements from the requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided that the term "international agreements" as contemplated in Section 21, Article VII, does not include executive agreements, and that a proviso is no longer needed. Their discussion is reproduced below:207 MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words "international agreement" which I think is the correct judgment

on the matter because an international agreement is different from a treaty. A treaty is a contract between parties which is in the nature of international agreement and also a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I would like to be clarified if the international agreements include executive agreements. MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards the parties. MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement? According to common usage, there are two types of executive agreement: one is purely proceeding from an executive act which affects external relations independent of the legislative and the other is an executive act in pursuance of legislative authorization. The first kind might take the form of just conventions or exchanges of notes or protocol while the other, which would be pursuant to the legislative authorization, may be in the nature of commercial agreements. MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to determine the details for the implementation of the treaty. We are speaking of executive agreements, not international agreements. MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive agreement which is just protocol or an exchange of notes and this would be in the 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. xxx MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these executive agreements must rely on treaties. In other words, there must first be treaties. MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the implementation of treaties, details of which do not affect the sovereignty of the State. MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be considered permanent? What would be the measure of permanency? I do not conceive of a treaty that is going to be forever, so there must be some kind of a time limit. MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be included in a provision of the Constitution requiring the concurrence of Congress. MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the executive agreement partakes of the nature of a treaty, then it should also be included. MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the Constitutional Commission to require that. MR. GUINGONA: 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. xxx MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as far as the Committee is concerned, the term "international agreements" does not include the term "executive agreements" as read by the Commissioner in that text? FR. BERNAS: Yes. (Emphases Supplied) The inapplicability to executive agreements of the requirements under Section 21 was again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive agreements are valid and binding even without the concurrence of the Senate. Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are concluded. As culled from the afore-quoted

deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,208 executive agreements merely involve arrangements on the 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 modem, simplified forms that no longer necessitate ratification.212 An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form.213 Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is irrelevant for purposes of determining international rights and obligations. However, this principle does not mean that the domestic law distinguishing treaties, international agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional requirement of Senate concurrence is demoted to an optional constitutional directive. There remain two very important features that distinguish treaties from executive agreements and translate them into terms of art in the domestic setting. First, executive agreements must remain traceable to an express or implied authorization under the Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules.214 In turn, executive agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement. Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the acts of the Executive and the Senate215 unlike executive agreements, which are solely executive actions.216Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior.218 An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered ineffective.219 Both types of international agreement are nevertheless subject to the supremacy of the Constitution.220 This rule does not imply, though, that the President is given carte blanche to exercise this discretion. Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power must still be exercised within the context and the parameters set by the Constitution, as well as by existing domestic and international laws. There are constitutional provisions that restrict or limit the President's prerogative in concluding international agreements, such as those that involve the following: a. The policy of freedom from nuclear weapons within Philippine territory221 b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, which must be pursuant to the authority granted by Congress222

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the Members of Congress223 d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously concurred in by the Monetary Board224 e. The authorization of the presence of foreign military bases, troops, or facilities in the country must be in the form of a treaty duly concurred in by the Senate.225 f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should the form of the government chosen be a treaty. 5. The President had the choice to enter into EDCA by way of an executive agreement or a treaty. No court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement, unless the case falls squarely within Article VIII, Section 25. As can be gleaned from the debates among the members of the Constitutional Commission, they were aware that legally binding international agreements were being entered into by countries in forms other than a treaty. At the same time, it is clear that they were also keen to preserve the concept of "executive agreements" and the right of the President to enter into such agreements. What we can glean from the discussions of the Constitutional Commissioners is that they understood the following realities: 1. Treaties, international agreements, and executive agreements are all constitutional manifestations of the conduct of foreign affairs with their distinct legal characteristics. a. Treaties are formal contracts between the Philippines and other States-parties, which are in the nature of international agreements, and also of municipal laws in the sense of their binding nature.226 b. International agreements are similar instruments, the provisions of which may require the ratification of a designated number of parties thereto. These agreements involving political issues or changes in national policy, as well as those involving international agreements of a permanent character, usually take the form of treaties. They may also include commercial agreements, which are executive agreements essentially, but which proceed from previous authorization by Congress, thus dispensing with the requirement of concurrence by the Senate.227 c. Executive agreements are generally intended to implement a treaty already enforced or to determine the details of the implementation thereof that do not affect the sovereignty of the State.228 2. Treaties and international agreements that cannot be mere executive agreements must, by constitutional decree, be concurred in by at least two-thirds of the Senate. 3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or facilities is particularly restricted. The requirements are that it be in the form of a treaty concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the votes cast by the people in a national

referendum held for that purpose; and that it be recognized as a treaty by the other contracting State. 4. Thus, executive agreements can continue to exist as a species of international agreements. That is why our Court has ruled the way it has in several cases. In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows: Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that xx x may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims. The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties' intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle. xxxx But over and above the foregoing considerations is the fact that - save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process. xxxx x x x. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice. In thus agreeing to conclude the Agreement thru E/N BF0-02803, 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 021 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 xx x may not be used to amend a treaty." 234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the question of the validity of executive agreements by comparing them with the general framework and the specific provisions of the treaties they seek to implement. In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework of the treaty antecedents to which the Philippines bound itself," 235 i.e., the MDT and the VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles 1236 and II237 of the VFA. It later on found that the term "activities" was deliberately left undefined and ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the Philippine government"238 and thereby allow the parties "a certain leeway in negotiation."239 The Court eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities, especially in the context of the VFA and the MDT. The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on custody and detention to ascertain the validity of the Romulo-Kenney Agreement.240 It eventually found that the two international agreements were not in accord, since the Romulo-Kenney Agreement had stipulated that U.S. military personnel shall be detained at the U.S. Embassy Compound and guarded by U.S. military personnel, instead of by Philippine authorities. According to the Court, the parties "recognized the difference between custody during the trial and detention after conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides with U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the confinement or detention be "by Philippine authorities." Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends the VFA" 242and follows with an enumeration of the differences between EDCA and the VFA. While these arguments will be rebutted more fully further on, an initial answer can already be given to each of the concerns raised by his dissent. The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows temporary stationing on a rotational basis of U.S. military personnel and their contractors in physical locations with permanent facilities and pre-positioned military materiel. This argument does not take into account that these permanent facilities, while built by U.S. forces, are to be owned by the Philippines once constructed.243 Even the VFA allowed construction for the benefit of U.S. forces during their temporary visits. The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel, which can include various types of warships, fighter planes, bombers, and

vessels, as well as land and amphibious vehicles and their corresponding ammunition.244 However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be brought into the country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials, supplies, and other property are imported into or acquired in the Philippines by or on behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in connection with activities under the VFA. These provisions likewise provide for the waiver of the specific duties, taxes, charges, and fees that correspond to these equipment. The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of troops for training exercises, whereas EDCA allows the use of territory for launching military and paramilitary operations conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA was intended for non-combat activides only, whereas the entry and activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial character, and were therefore not contemplated by the VFA.246 This Court's jurisprudence however established in no uncertain terms that combat-related activities, as opposed to actual combat, were allowed under the MDT and VFA, viz: Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized.247 Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent of the VFA since EDCA's combat-related components are allowed under the treaty. Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and EDCA deal with the presence of U.S. forces within the Philippines, but make no mention of being platforms for activity beyond Philippine territory. While it may be that, as applied, military operations under either the VFA or EDCA would be carried out in the future the scope of judicial review does not cover potential breaches of discretion but only actual occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on the basis of the potentially abusive use of its provisions. The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248 As previously mentioned, these points shall be addressed fully and individually in the latter analysis of EDCA's provisions. However, it must already be clarified that the terms and details used by an implementing agreement need not be found in the mother treaty. They must be sourced from the authority derived from the treaty, but are not necessarily expressed word-for-word in the mother treaty. This concern shall be further elucidated in this Decision. The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that may be construed as a restriction on or modification of obligations found in existing statues, including the jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that EDCA contains such restrictions or modifications.249 This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements, with the exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes are assumed by the government as will be discussed later on. This fact does not, therefore, produce a diminution of jurisdiction on the part of the Philippines, but rather a

recognition of sovereignty and the rights that attend it, some of which may be waived as in the cases under Articles III-VI of the VFA. Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and the VFA, which are the two treaties from which EDCA allegedly draws its validity. "Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S. personnel and (2) U.S. contractors The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains that EDCA articulates the principle of defensive preparation embodied in Article II of the MDT; and seeks to enhance the defensive, strategic, and technological capabilities of both parties pursuant to the objective of the treaty to strengthen those capabilities to prevent or resist a possible armed attack. Respondent also points out that EDCA simply implements Article I of the VFA, which already allows the entry of U.S. troops and personnel into the country. Respondent stresses this Court's recognition in Lim v. Executive Secretary that U.S. troops and personnel are authorized to conduct activities that promote the goal of maintaining and developing their defense capability. Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT. According to them, the treaty does not specifically authorize the entry of U.S. troops in the country in order to maintain and develop the individual and collective capacities of both the Philippines and the U.S. to resist an armed attack. They emphasize that the treaty was concluded at a time when there was as yet no specific constitutional prohibition on the presence of foreign military forces in the country. Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the specific purpose of combined military exercises with their Filipino counterparts. They stress that, in contrast, U.S. troops are allowed under EDCA to perform activities beyond combined military exercises, such as those enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of permanence in the presence of U.S. troops in the country, since the effectivity of EDCA is continuous until terminated. They proceed to argue that while troops have a "rotational" presence, this scheme in fact fosters their permanent presence. a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under the VFA We shall first deal with the recognition under EDCA of the presence in the country of three distinct classes of individuals who will be conducting different types of activities within the Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to them as follows: "United States personnel" means United States military and civilian personnel temporarily in the territory of the Philippines in connection with activities approved by the Philippines, as those terms are defined in the VFA.252 "United States forces" means the entity comprising United States personnel and all property, equipment, and materiel of the United States Armed Forces present in the territory of the Philippines.253 "United States contractors" means companies and firms, and their employees, under contract or subcontract to or on behalf of the United States Department of Defense. United States contractors are not included as part of the definition of United States personnel in this Agreement, including within the context of the VFA.254 United States forces may contract for any materiel, supplies, equipment, and services (including construction) to be

furnished or undertaken in the territory of the Philippines without restriction as to choice of contractor, supplier, or person who provides such materiel, supplies, equipment, or services. Such contracts shall be solicited, awarded, and administered in accordance with the laws and regulations of the United States.255 (Emphases Supplied) A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with the entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and II(4)257 speak of "the right to access and use" the Agreed Locations, their wordings indicate the presumption that these groups have already been allowed entry into Philippine territory, for which, unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes to the VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows: As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government. Within this definition: 1. The term "military personnel" refers to military members of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard. 2. The term "civilian personnel" refers to individuals who are neither nationals of nor ordinarily resident in the Philippines and who are employed by the United States armed forces or who are accompanying the United States armed forces, such as employees of the American Red Cross and the United Services Organization.258 Article II of EDCA must then be read with Article III of the VFA, which provides for the entry accommodations to be accorded to U.S. military and civilian personnel: 1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this agreement. 2. United States military personnel shall be exempt from passport and visa regulations upon enteringand departing the Philippines. 3. The following documents only, which shall be required in respect of United States military personnel who enter the Philippines; xx xx. 4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid passports upon entry and departure of the Philippines. (Emphases Supplied) By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian personnel to be "temporarily in the Philippines," so long as their presence is "in connection with activities approved by the Philippine Government." The Philippines, through Article III, even guarantees that it shall facilitate the admission of U.S. personnel into the country and grant exemptions from passport and visa regulations. The VFA does not even limit their temporary presence to specific locations. Based on the above provisions, the admission and presence of U.S. military and civilian personnel in Philippine territory are already allowed under the VFA, the treaty supposedly being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to identify the locations in which U.S. personnel may perform allowed activities pursuant to the VFA. As the implementing agreement, it regulates and limits the presence of U.S. personnel in the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory; their entry must be sourced from extraneous Philippine statutes and regulations for the admission of alien employees or business persons. Of the three aforementioned classes of individuals who will be conducting certain activities within the Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This does not mean, though, that the recognition of their presence under EDCA is ipso facto an amendment of the treaty, and that there must be Senate concurrence before they are allowed to enter the country. Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles III and IV, in fact, merely grant them the right of access to, and the authority to conduct certain activities within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they shall not be granted the same entry accommodations and privileges as those enjoyed by U.S. military and civilian personnel under the VFA. Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S. contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is "a matter of pure permission and simple tolerance which creates no obligation on the part of the government to permit them to stay."260 Unlike U.S. personnel who are accorded entry accommodations, U.S. contractors are subject to Philippine immigration laws.261The latter must comply with our visa and passport regulations262 and prove that they are not subject to exclusion under any provision of Philippine immigration laws.263 The President may also deny them entry pursuant to his absolute and unqualified power to prohibit or prevent the admission of aliens whose presence in the country would be inimical to public interest.264 In the same vein, the President may exercise the plenary power to expel or deport U.S. contractors265 as may be necessitated by national security, public safety, public health, public morals, and national interest.266 They may also be deported if they are found to be illegal or undesirable aliens pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of the VFA requires a request for removal from the Philippine government before a member of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines." c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in furtherance of the MDT and the VFA We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the activities in which U.S. military and civilian personnel may engage: MUTUAL DEFENSE TREATY Article II In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly byself-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 Treaty of August 30, 1951;

the Mutual

Defense

Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines; Considering that cooperation between the United States and the Republic of the Philippines promotes their common security interests; xxx Article I - Definitions As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government. Within this definition: xx x Article II - Respect for Law It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done. Article VII - Importation and Exportation 1. United States Government equipment, materials, supplies, and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property shall remain with the United States, which may remove such property from the Philippines at any time, free from export duties, taxes, and other similar charges. x x x. Article VIII - Movement of Vessels and Aircraft 1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements. 2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines. The movement of vessels shall be in accordance with international custom and practice governing such vessels, and such agreed implementing arrangements as necessary. x x x (Emphases Supplied) Manifest in these provisions is the abundance of references to the creation of further "implementing arrangements" including the identification of "activities [to be] approved by the Philippine Government." To determine the parameters of these implementing arrangements and activities, we referred to the content, purpose, and framework of the MDT and the VFA. By its very language, the MDT contemplates a situation in which both countries shall engage in joint activities, so that they can maintain and develop their defense capabilities. The wording itself evidently invites a reasonable construction that the joint activities shall involve joint military trainings, maneuvers, and exercises. Both the interpretation269 and the subsequent practice270 of the parties show that the MDT independently allows joint military exercises in the country. Lim v. Executive Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities that seek to enhance and develop the strategic and technological capabilities of the parties to resist an armed attack, "fall squarely under the provisions of the RP-US MDT."273 In Lim, the Court especially noted that the Philippines and the U.S. continued to conduct joint military exercises even after the

expiration of the MBA and even before the conclusion of the VFA.274 These activities presumably related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded to U.S. military and civilian personnel while conducting activities in the Philippines in relation to the MDT.275 Further, it can be logically inferred from Article V of the MDT that these joint activities may be conducted on Philippine or on U.S. soil. The article expressly provides that the term armed attack includes "an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific." Surely, in maintaining and developing our defense capabilities, an assessment or training will need to be performed, separately and jointly by self-help and mutual aid, in the territories of the contracting parties. It is reasonable to conclude that the assessment of defense capabilities would entail understanding the terrain, wind flow patterns, and other environmental factors unique to the Philippines. It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable areas would be part of the training of the parties to maintain and develop their capacity to resist an actual armed attack and to test and validate the defense plan of the Philippines. It is likewise reasonable to imagine that part of the training would involve an analysis of the effect of the weapons that may be used and how to be prepared for the eventuality. This Court recognizes that all of this may require training in the area where an armed attack might be directed at the Philippine territory. The provisions of the MDT must then be read in conjunction with those of the VFA. Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines is "in connection with activities approved by the Philippine Government." While the treaty does not expressly enumerate or detail the nature of activities of U.S. troops in the country, its Preamble makes explicit references to the reaffirmation of the obligations of both countries under the MDT. These obligations include the strengthening of international and regional security in the Pacific area and the promotion of common security interests. The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to afford the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel.276 In ruling that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the treaty, this Court explained: After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities - as opposed to combat itself- such as the one subject of the instant petition, are indeed authorized. (Emphases Supplied) The joint report of the Senate committees on foreign relations and on national defense and security further explains the wide

range and variety of activities contemplated in the VFA, and how these activities shall be identified:277 These joint exercises envisioned in the VFA are not limited to combat-related activities; they have a wide range and variety. They include exercises that will reinforce the AFP's ability to acquire new techniques of patrol and surveillance to protect the country's maritime resources; sea-search and rescue operations to assist ships in distress; and disaster-relief operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons and tidal waves. xxxx Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and equipment repair; civicaction 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.

According to Article I of EDCA, one of the purposes of these activities is to maintain and develop, jointly and by mutual aid, the individual and collective capacities of both countries to resist an armed attack. It further states that the activities are in furtherance of the MDT and within the context of the VFA. We note that these planned activities are very similar to those under the Terms of Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform the following: (a) participate in training exercises; (b) retain command over their forces; (c) establish temporary structures in the country; (d) share in the use of their respective 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 I. POLICY LEVEL xxxx No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.

xxxx Siazon clarified that it is not the VFA by itself that determines what activities will be conductedbetween 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)

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.

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

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.

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:

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.

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 Parties279

xx xx.

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 agree280

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.

3. Exercise of operational control over the Agreed Locations for construction activities and other types of activity, including alterations and improvements thereof281 4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their operational control or defense, including the adoption of apfropriate measures to protect U.S. forces and contractors282 5. Use of water, electricity, and other public 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 purpose284

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

II. EXERCISE LEVEL 1. TRAINING a. The Exercise shall involve the conduct of mutual military assisting, advising and trainingof 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 independently within RP territory.

operate

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations. 2. ADMINISTRATION & LOGISTICS

xxxx a. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels. x x x. (Emphases Supplied) After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we find that EDCA has remained within the parameters set in these two treaties. Just like the Terms of Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be in the form of executive agreements. Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the U.S. terminates the agreement. According to petitioners, such length of time already has a badge of permanency. In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas EDCA allows an unlimited period for U.S. forces to stay in the Philippines.288 However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of effectivity. Although this term is automatically renewed, the process for terminating the agreement is unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this method does not create a permanent obligation. Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA does not include a maximum time limit with respect to the presence of U.S. personnel in the country. We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S. governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate in the entire text of the VFA as an implicit grant to the President of a margin of appreciation in determining the duration of the "temporary" presence of U.S. personnel in the country. Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in nature.289However, this argument has not taken root by virtue of a simple glance at its provisions on the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access to facilities for efficiency. As Professor Aileen S.P. Baviera notes: The new EDCA would grant American troops, ships and planes rotational access to facilities of the Armed Forces of the Philippines – but not permanent bases which are prohibited under the Philippine Constitution - with the result of reducing response time should an external threat from a common adversary crystallize.290 EDCA is far from being permanent in nature compared to the practice of states as shown in other defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense agreement provides the following: This Agreement is concluded for an indefinite period and shall enter into force in accordance with the internal laws of each Party x x x. (emphasis supplied) Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads: This Agreement has been concluded for an indefinite period of time. It may be terminated by written notification by either Party and in that event it terminates 2 years after the receipt of the notification. (emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides: 8.1 This Agreement, which consists of a Preamble, SECTIONs IVIII, and Annexes A and B, shall become effective on the date of the last signature affixed below and shall remain in force until terminated by the Parties, provided that it may be terminated by either Party upon 180 days written notice of its intention to do so to the other Party. (emphasis supplied) On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer initial term: 3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force, but may be terminated by either Party at any time upon one year's written notice to the other Party through diplomatic channels. (emphasis supplied) The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of that is provided in the latter agreement. This means that EDCA merely follows the practice of other states in not specifying a non-extendible maximum term. This practice, however, does not automatically grant a badge of permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that its effectivity is for an initial term of 10 years, which is far shorter than the terms of effectivity between the U.S. and other states. It is simply illogical to conclude that the initial, extendible term of 10 years somehow gives EDCA provisions a permanent character. The reasoning behind this interpretation is rooted in the constitutional role of the President who, as Commander-inChief of our armed forces, is the principal strategist of the nation and, as such, duty-bound to defend our national sovereignty and territorial integrity;291 who, as chief architect of our foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security and interests;292 who holds the most comprehensive and most confidential information about foreign countries293 that may affect how we conduct our external affairs; and who has unrestricted access to highly classified military intelligence data294 that may threaten the life of the nation. Thus, if after a geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer period of military training is needed, the President must be given ample discretion to adopt necessary measures including the flexibility to set an extended timetable. Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the President may not always be able to candidly and openly discuss the complete situation being faced by the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls for crafting programs and setting timelines for approved activities. These activities may be necessary for maintaining and developing our capacity to resist an armed attack, ensuring our national sovereignty and territorial integrity, and securing our national interests. If the Senate decides that the President is in the best position to define in operational terms the meaning of temporary in relation to the visits, considered individually or in their totality, the Court must respect that policy decision. If the Senate feels that there is no need to set a time limit to these visits, neither should we. Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary" nature of the visits of U.S. personnel does not suggest that the duration to which the President may agree is unlimited. Instead, the boundaries of the meaning of the term temporary in Article I of the treaty must be measured depending on the purpose of each visit or activity.295 That purpose must be analyzed on a case-by-case basis depending on the factual circumstances surrounding the conclusion of the implementing agreement. While the validity of the President's actions will be judged under less stringent standards, the power of this Court to determine whether there was grave abuse of discretion remains unimpaired. d. Authorized activities performed by US. contractors within Philippine territory - who were legitimately permitted to enter

the country independent of EDCA - are subject to relevant Philippine statutes and regulations and must be consistent with the MDT and the VFA Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private security contractors in other countries. They claim that these contractors - one of which has already been operating in Mindanao since 2004 have been implicated in incidents or scandals in other parts of the globe involving rendition, torture and other human rights violations. They also assert that these contractors employ paramilitary forces in other countries where they are operating. Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following activities: 1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deployment of forces and materiel; and such other activities as the Parties may agree297 2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel298 3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, regulations, and policies299 EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This means that certain privileges denied to aliens are likewise denied to foreign military contractors. Relevantly, providing security300and carrying, owning, and possessing firearms301 are illegal for foreign civilians. The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign Investment Negative list,302 the Executive Department has already identified corporations that have equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487;303 and No. 15, which regulates contracts for the construction of defenserelated structures based on Commonwealth Act No. 541. Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate and civil requirements imposed by the law, depending on the entity's corporate structure and the nature of its business. That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S. contractors has been clear even to some of the present members of the Senate. For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the waters off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on Environment and Natural Resources chairperson claimed environmental and procedural violations by the contractor.305 The U.S. Navy investigated the contractor and promised stricter guidelines to be imposed upon its contractors.306 The statement attributed to Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet that U.S. Navy contractors are bound by Philippine laws - is of particular relevance. The statement acknowledges not just the presence of the contractors, but also the U.S. position that these contractors are bound by the local laws of their host state. This stance was echoed by other U.S. Navy representatives.307 This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the purpose of fulfilling the

terms of the VFA. That they are bound by Philippine law is clear to all, even to the U.S. As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their activities must be consistent with Philippine laws and regulations and pursuant to the MDT and the VFA. While we recognize the concerns of petitioners, they do not give the Court enough justification to strike down EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take judicial notice of claims aired in news reports, "not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence."308 What is more, we cannot move one step ahead and speculate that the alleged illegal activities of these contractors in other countries would take place in the Philippines with certainty. As can be seen from the above discussion, making sure that U.S. contractors comply with Philippine laws is a function of law enforcement. EDCA does not stand in the way of law enforcement. Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and treaties applicable within the Philippine territory. They may be refused entry or expelled from the country if they engage in illegal or undesirable activities. There is nothing that prevents them from being detained in the country or being subject to the jurisdiction of our courts. Our penal laws,309 labor laws,310 and immigrations laws311 apply to them and therefore limit their activities here. Until and unless there is another law or treaty that specifically deals with their entry and activities, their presence in the country is subject to unqualified Philippine jurisdiction. EDCA does not allow the presence of U.S.-owned or controlled military facilities and bases in the Philippines Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through the "euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article II(4) of EDCA, they point out that these locations are actually military bases, as the definition refers to facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners claim that there are several badges of exclusivity in the use of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are no longer needed by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4) ofEDCA talks about American forces' unimpeded access to the Agreed Locations for all matters relating to the prepositioning and storage of U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications system. a. Preliminary point on badges of exclusivity As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called "badges of exclusivity," despite the presence of contrary provisions within the text of the agreement itself. First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is within the context of a lengthy provision. The provision as a whole reads as follows: The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including non-relocatable structures and assemblies constructed, modified, or improved by the United States, once no longer required by United States forces for activities under this Agreement. The Parties or the Designated Authorities shall consult regarding the terms of return of any Agreed Locations, including possible compensation for improvements or construction. The context of use is "required by United States forces for activities under this Agreement." Therefore, the return of an

Agreed Location would be within the parameters of an activity that the Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to its return of the Agreed Location would be based on the authority given to it by a joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with representatives from the Philippines' Department of National Defense and Department of Foreign Affairs sitting as members."313 The terms shall be negotiated by both the Philippines and the U.S., or through their Designated Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the return as a "badge of exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA in full bloom. Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel." At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in these equipment, supplies, and materiel through the MDB and SEB security mechanism. These items are owned by the U.S.,314 are exclusively for the use of the U.S.315 and, after going through the joint consent mechanisms of the MDB and the SEB, are within the control of the U.S.316 More importantly, before these items are considered prepositioned, they must have gone through the process of prior authorization by the MDB and the SEB and given proper notification to the AFP.317 Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership, use, and control of the U.S. over its own equipment, supplies, and materiel and must have first been allowed by the joint mechanisms in play between the two states since the time of the MDT and the VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere access to items in order to exercise the rights of ownership granted by virtue of the Philippine Civil Code.318 As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications system, it will be met and answered in part D, infra. Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow similar activities within the area; (b) provide for the same "species of ownership" over facilities; and (c) grant operational control over the entire area. Finally, they argue320 that EDCA is in fact an implementation of the new defense policy of the U.S. According to them, this policy was not what was originally intended either by the MDT or by the VFA. On these points, the Court is not persuaded. The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the right to construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel provisions of EDCA allow only operational control over the Agreed Locations specifically for construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy, garrison, and control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of every activity, including construction, by giving the MDB and the SEB the power to determine the details of all activities such as, but not limited to, operation, maintenance, utility, occupancy, garrisoning, and control.322 The "species of ownership" on the other hand, is distinguished by the nature of the property. For immovable property constructed or developed by the U.S., EDCA expresses that ownership will automatically be vested to the Philippines.323 On the other hand, for movable properties brought into the

Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the MBA dictates that the U.S. retains ownership over immovable and movable properties. To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable property full rights over that property, even if located in another person's property.324 The parallelism, however, ends when the situation involves facilities that can be considered immovable. Under the MBA, the U.S. retains ownership if it paid for the facility.325 Under EDCA, an immovable is owned by the Philippines, even if built completely on the back of U.S. funding.326 This is consistent with the constitutional prohibition on foreign land ownership.327 Despite the apparent similarity, the ownership of property is but a part of a larger whole that 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. b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to do under the 1947 MBA The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under EDCA for a number of important reasons. First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over any part of the Philippines in which its forces or equipment may be found. Below is a comparative table between the old treaty and EDCA: 1947 MBA/ 1946 Treaty of General Relations

EDCA

1947 MBA, Art. I(1):

EDCA, preamble:

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.

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;

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

xxxx 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; xxxx 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

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.

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. xxxx 4. All buildings, nonrelocatable 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):

EDCA, preamble:

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.

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;

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

xxxx 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

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.

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.I(2):

EDCA, Art. III(4):

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.

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, 1947 MBA, Art. III(1): alterations, and improvements based on the Parties' It is mutually agreed shared intent that the technical that the United requirements and construction Statesshall have standards of any such projects the rights, power and undertaken by or on behalf of authority within the United States forces should be bases which consistent with the requirements are necessary for the and standards of both Parties. 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.

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

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:

EDCA, Art. III(1):

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.

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.

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):

EDCA, Art. III(2):

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 roadsand bridges affording access to the bases.

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, Art.I(2):

1947 MBA

EDCA

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. VII:

EDCA, Art. III(2):

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 applicablefrom time to time to the military forces of the Philippines.

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).

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not have any right, power, or authority to do so under EDCA. 1947 MBA

EDCA

1947 MBA, Art. 111(2)(c)

No equivalent provision.

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

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):

EDCA, Art. III(4):

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.

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.

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(l):

No equivalent provision.

Whenever it to acquire by

is

necessary

condemnation or expropriation proceedings real property belonging to any private persons, associations or corporations located in bases named in Annex A and Annex B in order to carry out the purposes of this Agreement, the Philippines will institute and prosecute such condemnation or expropriation proceedings in accordance with the laws of the Philippines. The United States agrees to reimburse the Philippines for all the reasonable expenses, damages and costs therebv incurred, including the value of the property as determined by the Court. In addition, subject to the mutual agreement of the two Governments, the United States will reimburse the Philippines for the reasonable costs of transportation and removal of any occupants displaced or ejected by reason of the condemnation or expropriation. Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine nationals who are under its employ, together with their families, in connection with the construction, maintenance, or operation of the bases. EDCA strictly adheres to the limits under the VFA.

1947 MBA

EDCA

1947 MBA, Art. XI(l):

EDCA, Art. II:

It is mutually agreed that 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.

1. "United States personnel" means United States military and civilian personneltemporarily in the territory of the Philippines in connection with activities approved by the Philippines, as those terms are defined in the VFA. x xx 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 includedas 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(l)(a):

No equivalent provision.

The Philippines consents that the United States shall have the right to exercise jurisdiction over the following offenses: (a) Any offense committed by any person within any base except where the offender and offended parties are both Philippine citizens (not members of the armed forces of the United States on active duty) or the offense is against the security of the Philippines. Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is free of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the PX store has become the cultural icon of U.S. military presence in the country. 1947 MBA

EDCA

1947 MBA, Art. XVIII(l):

No equivalent provision.

It is mutually agreed that the United States

shall have the right to establish on bases, free of all licenses; fees; sales, excise or other taxes, or imposts; Government agencies, including concessions, such as sales commissaries and post exchanges; messes and social clubs, for the exclusive use of the United States military forces and authorized civilian personnel and their families. The merchandise or services sold or dispensed by such agencies shall be free of all taxes, duties and inspection by the Philippine authorities. Administrative measures shall be taken by the appropriate authorities of the United States to prevent the resale of goods which are sold under the provisions of this Article to persons not entitled to buy goods at such agencies and, generally, to prevent abuse of the privileges granted under this Article. There shall be cooperation between such authorities and the Philippines to this end. In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the 1987 Constitution was adopted. Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and "facilities" is required before EDCA can be deemed to have passed judicial scrutiny. c. The meaning of military facilities and bases An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital in determining whether EDCA breached the constitutional restriction. Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the decree as supported by Article 281 of the Revised Penal Code, which itself prohibits the act of trespass. Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means any military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines." Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986 Constitutional Commission, listed the areas that he considered as military bases: 1,000 hectares Camp O'Donnel 20,000 hectares Crow Valley Weapon's Range 55,000 hectares Clark Air Base 150 hectares Wallace Air Station 400 hectares John Hay Air Station 15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication 750 hectares Radio Transmitter in Capas, Tarlac 900 hectares Radio Bigot Annex at Bamban, Tarlac 329 The Bases Conversion and Development Act described its coverage in its Declaration of Policies:

of

1992

Sec. 2.Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the sound and balanced conversion into alternative productive uses of the Clark and Subic military reservations and their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter Station, San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the sale of portions of Metro Manila military camps, and to apply said funds as provided herein for the development and conversion to productive civilian use of the lands covered under the 194 7 Military Bases Agreement between the Philippines and the United States of America, as amended.330 The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which specifically restricts, among others, foreign military facilities or bases. At the time of its crafting of the Constitution, the 1986 Constitutional Commission had a clear idea of what exactly it was restricting. While the term "facilities and bases" was left undefined, its point of reference was clearly those areas covered by the 1947 MBA as amended. Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology and geopolitics has surpassed the understanding of the Philippine people in 1986. The last direct military action of the U.S. in the region was the use of Subic base as the staging ground for Desert Shield and Desert Storm during the Gulf War.331In 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

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

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

SPEECH OF COMMISSIONER SUAREZ337 MR. SUAREZ: Thank you, Madam President. I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of foreign bases from the Philippines have been adequately treated by previous speakers. Let me, therefore, just recapitulate the arguments adduced in favor of a foreign bases-free Philippines: 1. That every nation should be free to shape its own destiny without outside interference; 2. That no lasting peace and no true sovereignty would ever be achieved so long as there are foreign military forces in our country;

REGALADO334

xxxx

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

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.

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;

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.

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our country of jurisdiction over civil and criminal offenses committed within our own national territory and against Filipinos; 7. That the bases agreements are colonial impositions and dictations upon our helpless country; and 8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and void ab initio, especially because they did not count the sovereign consent and will of the Filipino people.338

xxxx 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

xxxx In the real sense, Madam President, if we in the Commission could accommodate the provisions I have cited, what is our objection to include in our Constitution a matter as priceless as the nationalist values we cherish? A matter of the gravest concern for the safety and survival of this nation indeed deserves a place in our Constitution. xxxx x x x Why should we bargain away our dignity and our selfrespect as a nation and the future of generations to come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN340 xxxx The underlying principle of military bases and nuclear weapons wherever they are found and whoever owns them is that those are for killing people or for terrorizing humanity. This objective by itself at any point in history is morally repugnant. This alone is reason enough for us to constitutionalize the ban on foreign military bases and on nuclear weapons.341 SPEECH OF COMMISSIONER

BACANI 342

xxxx x x x Hence, the remedy to prostitution does not seem to be primarily to remove the bases because even if the bases are removed, the girls mired in poverty will look for their clientele elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and concerned citizenry, a healthy economy and a sound education in values.343 SPEECH OF COMMISSIONER JAMIR344 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 TINGSON346 xxxx In the case of the Philippines and the other Southeast Asian nations, the presence of American troops in the country is a projection of America's security interest. Enrile said that nonetheless, they also serve, although in an incidental and secondary way, the security interest of the Republic of the Philippines and the region. 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 xxxx Allow me to say in summation that I am for the retention of American military bases in the Philippines provided that such an extension from one period to another shall be concluded upon concurrence of the parties, and such extension shall be based on justice, the historical amity of the people of the Philippines and the United States and their common defense interest.348 SPEECH OF COMMISSIONER ALONTO349 xxxx

Madam President, sometime ago after this Commission started with this task of framing a constitution, I read a statement of President Aquino to the effect that she is for the removal of the U.S. military bases in this country but that the removal of the U.S. military bases should not be done just to give way to other foreign bases. Today, there are two world superpowers, both vying to control any and all countries which have importance to their strategy for world domination. The Philippines is one such country. Madam President, I submit that I am one of those ready to completely remove any vestiges of the days of enslavement, but not prepared to erase them if to do so would merely leave a vacuum to be occupied by a far worse type.350 SPEECH OF COMMISSIONER GASCON351 xxxx Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in Indo-China, Central America, in South Africa - there has been escalation of war in some of these areas because of foreign intervention which views these conflicts through the narrow prism of the East-West conflict. The United States bases have been used as springboards for intervention in some of these conflicts. We should not allow ourselves to be party to the warlike mentality of these foreign interventionists. We must always be on the side of peace – this means that we should not always rely on military solution.352 xxxx x x x The United States bases, therefore, are springboards for intervention in our own internal affairs and in the affairs of other nations in this region. xxxx Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which should logically be declared in black and white in our fundamental law of the land - the Constitution. Let us express our desire for national sovereignty so we may be able to achieve national selfdetermination. Let us express our desire for neutrality so that we may be able to follow active nonaligned independent foreign policies. Let us express our desire for peace and a nuclear-free zone so we may be able to pursue a healthy and tranquil existence, to have peace that is autonomous and not imposed. 353 xxxx SPEECH OF COMMISSIONER TADEO354 Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically and culturally. Para sa sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon - ang kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S. military bases ay isang salot.355 SPEECH OF COMMISSIONER QUESADA356 xxxx

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

SPEECH OF COMMISSIONER P ADILLA360

xxxx

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

So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's position to enshrine in the Constitution a fundamental principle forbidding foreign military bases, troops or facilities in any part of the Philippine territory as a clear and concrete manifestation of our inherent right to national self-determination, independence and sovereignty. Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social cost of allowing foreign countries to maintain military bases in our country. Previous speakers have dwelt on this subject, either to highlight its importance in relation to the other issues or to gloss over its significance and !llake this a part of future negotiations.357 xxxx Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the response of the Filipino people against this condition and other conditions that have already been clearly and emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the Constitution we are drafting will have the following implications: First, the failure of the Constitutional Commission to decisively respond to the continuing violation of our territorial integrity via the military bases agreement which permits the retention of U.S. facilities within the Philippine soil over which our authorities have no exclusive jurisdiction contrary to the accepted definition of the exercise of sovereignty. Second, consent by this forum, this Constitutional Commission, to an exception in the application of a provision in the Bill of Rights that we have just drafted regarding equal application of the laws of the land to all inhabitants, permanent or otherwise, within its territorial boundaries. Third, the continued exercise by the United States of extraterritoriality despite the condemnations of such practice by the world community of nations in the light of overwhelming international approval of eradicating all vestiges of colonialism.358 xxxx Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be wielded to force the United States government to concede to better terms and conditions concerning the military bases agreement, including the transfer of complete control to the Philippine government of the U.S. facilities, while in the meantime we have to suffer all existing indignities and disrespect towards our rights as a sovereign nation. xxxx Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially a question of sovereignty which does not require in-depth studies or analyses and which this forum has, as a constituent assembly drafting a constitution, the expertise and capacity to decide on except that it lacks the political will that brought it to existence and now engages in an elaborate scheme of buck-passing. xxxx Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold and defend our national sovereignty. National sovereignty is what the military bases issue is all about. It is only the sovereign people exercising their national sovereignty who can design an independent course and take full control of their national destiny.359

xxxx

REBUTTAL OF COMMISSIONER NOLLEDO362 xxxx The anachronistic and ephemeral arguments against the provisions of the committee report to dismantle the American bases after 1991 only show the urgent need to free our country from the entangling alliance with any power bloc.363 xxxx xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called RP-US Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction as well as national dignity and honor, that it goes against the UN policy of disarmament and that it constitutes unjust intervention in our internal affairs.364 (Emphases Supplied) The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities, subject to the provisions of Section 25. It is thus important to read its discussions carefully. From these discussions, we can deduce three legal standards that were articulated by the Constitutional Commission Members. These are characteristics of any agreement that the country, and by extension this Court, must ensure are observed. We can thereby determine whether a military base or facility in the Philippines, which houses or is accessed by foreign military troops, is foreign or remains a Philippine military base or facility. The legal standards we find applicable are: independence from foreign control, sovereignty and applicable law, and national security and territorial integrity. i. First standard: independence from foreign control Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was aimed at asserting Philippine independence from the U.S., as well as control over our country's territory and military. Under the Civil Code, there are several aspects of control exercised over property. Property is classified as private or public.365 It is public if "intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character[,]" or "[t]hose which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth. "366 Quite clearly, the Agreed Locations are contained within a property for public use, be it within a government military camp or property that belongs to the Philippines.1avvphi1 Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than those established by law." Moreover, the owner "has also a right of action against the holder and possessor of the thing in order to recover it." Philippine civil law therefore accords very strong rights to the owner of property, even against those who hold the property. Possession, after all, merely raises a disputable presumption of ownership, which can be contested through normal judicial processes.367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the Philippine govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access to and use of these locations.369 The right of the owner of the property to allow access and use is consistent with the Civil Code, since the owner may dispose of the property in whatever way deemed fit, subject to the limits of the law. So long as the right of ownership itself is not transferred, then whatever rights are transmitted by agreement does not completely divest the owner of the rights over the property, but may only limit them in accordance with law. Hence, even control over the property is something that an owner may transmit freely. This act does not translate into the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission, we stated that the constitutional proscription on property ownership is not violated despite the foreign national's control over the property.370 EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under its pertinent provisions, it is the Designated Authority of the Philippines that shall, when requested, assist in facilitating transit or access to public land and facilities.371 The activities carried out within these locations are subject to agreement as authorized by the Philippine govemment.372 Granting the U.S. operational control over these locations is likewise subject to EDCA' s security mechanisms, which are bilateral procedures involving Philippine consent and cooperation.373 Finally, the Philippine Designated Authority or a duly designated representative is given access to the Agreed Locations.374 To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation from the point of view of the Philippine government, which balanced constitutional restrictions on foreign military bases and facilities against the security needs of the country. In the 1947 MBA, the U.S. forces had "the right, power and authority x x x to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases."375 No similarly explicit provision is present in EDCA. Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate. Merely stating that the Philippines would retain ownership would do violence to the constitutional requirement if the Agreed Locations were simply to become a less obvious manifestation of the U.S. bases that were rejected in 1991. When debates took place over the military provisions of the Constitution, the committee rejected a specific provision proposed by Commissioner Sarmiento. The discussion illuminates and provides context to the 1986 Constitutional Commission's vision of control and independence from the U.S., to wit: MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE PHILIPPINES." Allow me to briefly explain, Madam President. The Armed Forces of the Philippines is a vital component of Philippine society depending upon its training, orientation and support. It will either be the people's protector or a staunch supporter of a usurper or tyrant, local and foreign interest. The Armed Forces of the Philippines' past and recent experience shows it has never been independent and self-reliant. Facts, data and statistics will show that it has been substantially dependent upon a foreign power. In March 1968, Congressman Barbero, himself a member of the Armed Forces of the Philippines, revealed top secret documents showing what he described as U.S. dictation over the affairs of the Armed Forces of the Philippines. He showed that under existing arrangements, the United States unilaterally determines not

only the types and quantity of arms and equipments that our armed forces would have, but also the time when these items are to be made available to us. It is clear, as he pointed out, that the composition, capability and schedule of development of the Armed Forces of the Philippines is under the effective control of the U.S. government.376 (Emphases supplied) Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would assert "independent" and "self-reliant" armed forces. This proposal was rejected by the committee, however. As Commissioner De Castro asserted, the involvement of the Philippine military with the U.S. did not, by itself, rob the Philippines of its real independence. He made reference to the context of the times: that the limited resources of the Philippines and the current insurgency at that time necessitated a strong military relationship with the U.S. He said that the U.S. would not in any way control the Philippine military despite this relationship and the fact that the former would furnish military hardware or extend military assistance and training to our military. Rather, he claimed that the proposal was in compliance with the treaties between the two states. MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12 September 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the armed forces. We have to blame the whole Republic of the Philippines for failure to provide the necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country insurgency - and with very limited funds and very limited number of men, it will be quite impossible for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S. government is furnishing us the military hardware, it is not control of our armed forces or of our government. It is in compliance with the Mutual Defense Treaty. It is under the military assistance program that it becomes the responsibility of the United States to furnish us the necessary hardware in connection with the military bases agreement. Please be informed that there are three (3) treaties connected with the military bases agreement; namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty and the Military Assistance Program. My dear Commissioner, when we enter into a treaty and we are furnished the military hardware pursuant to that treaty, it is not in control of our armed forces nor control of our government. True indeed, we have military officers trained in the U.S. armed forces school. This is part of our Military Assistance Program, but it does not mean that the minds of our military officers are for the U.S. government, no. I am one of those who took four courses in the United States schools, but I assure you, my mind is for the Filipino people. Also, while we are sending military officers to train or to study in U.S. military schools, we are also sending our officers to study in other military schools such as in Australia, England and in Paris. So, it does not mean that when we send military officers to United States schools or to other military schools, we will be under the control of that country. We also have foreign officers in our schools, we in the Command and General Staff College in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio.377 (Emphases supplied) This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not mean the absence of foreign participation: Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion" nor "mendicancy in the international community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy: Economic self reliance is a primary objective of a developing country 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.1âwphi1 The essence of that independence is selfgovernance and self-control.379 Independence itself is "[t]he state or condition of being free from dependence, subjection, or control. "380 Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine facilities and locations, such that the agreement effectively violates Section 25 of the 1987 Constitution.381 Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control and defense." The term "operational control" has led petitioners to regard U.S. control over the Agreed Locations as unqualified and, therefore, total.382 Petitioners contend that the word "their" refers to the subject "Agreed Locations." This argument misreads the text, which is quoted below: United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense, including taking appropriate measure to protect United States forces and United States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines. A basic textual construction would show that the word "their," as understood above, is a possessive pronoun for the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot be used for a non-personal subject such as "Agreed Locations." The simple grammatical conclusion is that "their" refers to the previous third-person plural noun, which is "United States forces." This conclusion is in line with the definition of operational control. a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed Locations Operational control, as cited by both respondents, is a military term referring to

petitioner

and

[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. b. Operational control vis-à-vis effective command and control Petitioners assert that beyond the concept of operational control over personnel, qualifying access to the Agreed Locations by the Philippine Designated Authority with the phrase "consistent with operational safety and security requirements in accordance with agreed procedures developed by the Parties" leads to the conclusion that the U.S. exercises effective control over the Agreed Locations.389 They claim that if the Philippines exercises possession of and control over a given area, its representative should not have to be authorized by a special provision.390 For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and control from operational control in U.S. parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of authority and direction by a properly designated commander over assigned and attached forces in the accomplishment of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose functions of command over assigned forces involving the composition of subordinate forces, the assignment of tasks, the designation of objectives, the overall control of assigned resources, and the full authoritative direction necessary to accomplish the mission."394 Two things demonstrate the errors in petitioners' line of argument. Firstly, the phrase "consistent with operational safety and security requirements in accordance with agreed procedures developed by the Parties" does not add any qualification beyond that which is already imposed by existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA and the MDT.395 Treaties are in themselves contracts from which rights and obligations may be claimed or waived.396 In this particular case, the Philippines has already agreed to abide by the security mechanisms that have long been in place between the U.S. and the Philippines based on the implementation of their treaty relations.397 Secondly, the full document cited by petitioners contradicts the equation of "operational control" with "effective command and control," since it defines the terms quite differently, viz:398 Command and control encompasses the exercise of authority, responsibility, and direction by a commander over assigned and attached forces to accomplish the mission. 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."

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.

Operational control is defined thus:399

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.

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform those functions of command over subordinate forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of military operations and joint training necessary to accomplish the mission. It should be delegated to and exercised by the commanders of subordinate organizations; normally, this authority is exercised through subordinate JFCs, Service, and/or functional component commanders. OPCON provides authority to organize and employ commands and forces as the commander considers necessary to accomplish assigned missions. It does not include authoritative direction for logistics or matters of administration, discipline, internal organization, or unit training. These elements of COCOM must be specifically delegated by the CCDR. OPCON does include the authority to delineate functional responsibilities and operational areas of subordinate JFCs. Operational control is therefore the delegable aspect of combatant command, while command and control is the overall power and responsibility exercised by the commander with reference to a mission. Operational control is a narrower power and must be given, while command and control is plenary and vested in a commander. Operational control does not include the planning, programming, budgeting, and execution process input; the assignment of subordinate commanders; the building of relationships with Department of Defense agencies; or the directive authority for logistics, whereas these factors are included in the concept of command and control.400 This distinction, found in the same document cited by petitioners, destroys the very foundation of the arguments they have built: that EDCA is the same as the MBA. c. Limited operational control over the Agreed Locations only for construction activitites As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational control within the Agreed Locations during construction activities.401 This exercise of operational control is premised upon the approval by the MDB and the SEB of the construction activity through consultation and mutual agreement on the requirements and standards of the construction, alteration, or improvement.402 Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for construction activities. The narrow and limited instance wherein the U.S. is given operational control within an Agreed Location cannot be equated with foreign military control, which is so abhorred by the Constitution. The clear import of the provision is that in the absence of construction activities, operational control over the Agreed Location is vested in the Philippine authorities. This meaning is implicit in the specific grant of operational control only during construction activities. The principle of constitutional construction, "expressio unius est exclusio alterius," means the failure to mention the thing becomes the ground for inferring that it was deliberately excluded.403Following 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

ii. Second standard: Philippine sovereignty and applicable law EDCA states in its Preamble the "understanding for the United States not to establish a permanent military presence or base in the territory of the Philippines." Further on, it likewise states the recognition that "all United States access to and use of facilities and areas will be at the invitation of the Philippines and with full respect for the Philippine Constitution and Philippine laws." The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine sovereignty and jurisdiction over the Agreed Locations. Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by law of power and authority to apply the law.407 Article I of the 1987 Constitution states: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied) From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces are allowed to access and use.408 By withholding ownership of these areas and retaining unrestricted access to them, the government asserts sovereignty over its territory. That sovereignty exists so long as the Filipino people exist.409 Significantly, the Philippines retains primary responsibility for security with respect to the Agreed Locations.410Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has been transferred to the U.S. Even the previously discussed necessary measures for operational control and defense over U.S. forces must be coordinated with Philippine authorities.411 Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws continue to be in force within the bases.412 The difference between then and now is that EDCA retains the primary jurisdiction of the Philippines over the security of the Agreed Locations, an important provision that gives it actual control over those locations. Previously, it was the provost marshal of the U.S. who kept the peace and enforced Philippine law in the bases. In this instance, Philippine forces act as peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction.413 iii. Third standard: must respect national security and territorial integrity The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not impair or threaten the national security and territorial integrity of the Philippines. This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered the prior notion of permanent military bases obsolete.

Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used 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 reestablishment 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 nonparticipants. International humanitarian law, which is the branch of international law applicable to armed conflict, expressly limits allowable military conduct exhibited by forces of a participant in an armed conflict.419 Under this legal regime, participants to an armed conflict are held to specific standards of conduct that require them to distinguish between combatants and non-combatants,420 as embodied by the Geneva Conventions and their Additional Protocols.421 Corollary to this point, Professor John Woodcliffe, professor of international law at the University of Leicester, noted that there is no legal consensus for what constitutes a base, as opposed to other terms such as "facilities" or "installation."422 In strategic literature, "base" is defined as an installation "over which the user State has a right to exclusive control in an extraterritorial sense."423 Since this definition would exclude most foreign military installations, a more important distinction must be made. For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill a combat role. He cites an example of the use of the territory of a state for training purposes, such as to obtain experience in local geography and climactic conditions or to carry out joint exercises.424 Another example given is an advanced communications technology installation for purposes of information gathering and communication.425 Unsurprisingly, he deems these non-combat uses as borderline situations that would be excluded from the functional understanding of military bases and installations.426 By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to be protected,

unless proven otherwise.427 Moreover, the principle of distinction requires combatants in an armed conflict to distinguish between lawful targets428 and protected 429 targets. 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 Agreement432

Defense

Cooperation

2. 2009 U.S.-Colombia Agreement433

Defense

Cooperation

3. 2009 U.S.-Poland Status of Forces Agreement434 4. 2014 U.S.-Australia Force Posture Agreement435 5. 2014 U.S.-Afghanistan Cooperation Agreement436

Security

and

Defense

In all of these arrangements, the host state grants U.S. forces access to their military bases.437 That access is without rental or similar costs to the U.S.438 Further, U.S. forces are allowed to undertake construction activities in, and make alterations and improvements to, the agreed locations, facilities, or areas.439 As in EDCA, the host states retain ownership and jurisdiction over the said bases.440 In fact, some of the host states in these agreements give specific military-related rights to the U.S. For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States forces x x x are authorized access to and may use agreed facilities and areas x x x for staging and deploying of forces and materiel, with the purpose of conducting x x x contingency operations and other missions, including those undertaken in the framework of the North Atlantic Treaty." In some of these agreements, host countries allow U.S. forces to construct facilities for the latter’s exclusive use.441 Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S. forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction and messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA, the MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle the "reciprocal provision

of logistic support, supplies, and services,"442 which include "[b ]illeting, x x x operations support (and construction and use of temporary structures incident to operations support), training services, x x x storage services, x x x during an approved activity."443 These logistic supplies, support, and services include temporary use of "nonlethal items of military equipment which are not designated as significant military equipment on the U.S. Munitions List, during an approved activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one has been extended until 2017 without any formal objection before this Court from the Senate or any of its members. The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned executive agreements. Instead of authorizing the building of temporary structures as previous agreements have done, EDCA authorizes the U.S. to build permanent structures or alter or improve existing ones for, and to be owned by, the Philippines.445 EDCA is clear that the Philippines retains ownership of altered or improved facilities and newly constructed permanent or non-relocatable structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas for "training; x x x; support and related activities; x x x; temporary accommodation of personnel; communications" and agreed activities.447 Concerns on national security problems that arise from foreign military equipment being present in the Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the presence of U.S. military equipment in the country. Article VII of the VFA already authorizes the U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and other property" that will be used "in connection with activities" contemplated therein. The same section also recognizes that "[t]itle to such property shall remain" with the US and that they have the discretion to "remove such property from the Philippines at any time." There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries have already entered into various implementing agreements in the past that are comparable to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support Agreements speak of the provision of support and services, including the "construction and use of temporary structures incident to operations support" and "storage services" during approved activities.449 These logistic supplies, support, and services include the "temporary use of x x x nonlethal items of military equipment which are not designated as significant military equipment on the U.S. Munitions List, during an approved activity."450Those activities include "combined exercises and training, operations and other deployments" and "cooperative efforts, such as humanitarian assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel that will be prepositioned at Agreed Locations include "humanitarian assistance and disaster relief equipment, supplies, and materiel. "452 Nuclear weapons are specifically excluded from the materiel that will be prepositioned. Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response, the Philippines will be prepared alongside the U.S. to defend its islands and insure its territorial integrity pursuant to a relationship built on the MDT and VFA. 8. Others issues and concerns raised A point was raised during the oral arguments that the language of the MDT only refers to mutual help and defense in the Pacific area.453 We believe that any discussion of the activities to be undertaken under EDCA vis-a-vis the defense

of areas beyond the Pacific is premature. We note that a proper petition on that issue must be filed before we rule thereon. We also note that none of the petitions or memoranda has attempted to discuss this issue, except only to theorize that the U.S. will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy and is beyond the scope of this judicial review. In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility adverted to does appear to be one of those that require a public franchise by way of congressional action under Section 11, Article XII of the Constitution. As respondents submit, however, the system referred to in the agreement does not provide telecommunications services to the public for compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication system is solely for the use of the U.S. and not the public in general, and that this system will not interfere with that which local operators use. Consequently, a public franchise is no longer necessary. Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely speculative. It is noteworthy that the agreement in fact specifies that the prepositioned materiel shall not include nuclear weapons.455Petitioners 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.

GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAÑEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police AntiCrime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners, vs. MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent. DECISION BRION, J.: We review in this petition for review on certiorari 1 the decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive portion of the CA decision reads: WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an "enforced disappearance" within the meaning of the United Nations instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby extended to Engr. Morced Tagitis. Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as their superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to enable this Court to monitor the action of respondents. This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief AntiTerror Task Force Comet, Zamboanga City, both being with the military, which is a separate and distinct organization from the police and the CIDG, in terms of operations, chain of command and budget. This Decision reflects the nature of the Writ of Amparo – a protective remedy against violations or threats of violation against the rights to life, liberty and security.3 It embodies, as a remedy, the court’s directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that

the life of the victim is preserved and his liberty and security are restored. We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate. THE FACTUAL ANTECEDENTS The background facts, based on the petition and the records of the case, are summarized below. The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around.5 The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key with the desk.6 Kunnong looked for Tagitis and even sent a text message to the latter’s Manila-based secretary who did not know of Tagitis’ whereabouts and activities either; she advised Kunnong to simply wait.7 On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis’ fellow student counselor at the IDB, reported Tagitis’ disappearance to the Jolo Police Station.8 On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis’ disappearance.9 More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police AntiCrime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, AntiTerror Task Force Comet [collectively referred to as petitioners]. After reciting Tagitis’ personal circumstances and the facts outlined above, the petition went on to state: xxxx 7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong; 8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was closed and locked; 9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the room of Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis, including cell phones, documents and other personal belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency; 11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups known to be fighting against the government; 12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines, who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia; 13. [Respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband; 14. All of these efforts of the [respondent] did not produce any positive results except the information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men; 15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups; xxxx 17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [respondent’s] request and pleadings failed to produce any positive results; 18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her husband, subject of the petition, was not missing but was with another woman having good time somewhere, which is a clear indication of the [petitioners’] refusal to help and provide police assistance in locating her missing husband; 19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis to his family or even to provide truthful information to [the respondent] of the subject’s whereabouts, and/or allow [the respondent] to visit her husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties; 20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying [sic] to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time; 21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent], informed her that they are not the proper persons that she should approach, but assured her not to worry because her husband is [sic] in good hands;

22. The unexplained uncooperative behavior of the [petitioners] to the [respondent’s] request for help and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners] are actually in physical possession and custody of [respondent’s] husband, Engr. Tagitis; xxxx 25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [the respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of the [petitioners], their intelligence operatives and the like which are in total violation of the subject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis supplied] On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from service of the writ.11 In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis’ alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. 12 The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any personal knowledge of, or any participation in, the alleged disappearance; that he had been designated by President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated with the investigators and local police, held case conferences, rendered legal advice in connection to these cases; and gave the following summary:13 xxxx 4. a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to the said report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an unidentified companion. It was only after a few days when the said victim did not return that the matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate the whereabouts of the said missing person, but to no avail. The said PPO is still conducting investigation that will lead to the immediate findings of the whereabouts of the person. b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The said report stated among others that: subject person attended an Education Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 o’clock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 o’clock in the morning of the same date, he instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00 o’clock in the morning, Engr. Tagitis left the premises of ASY Pension House as stated by the cashier of the said pension house. Later

in the afternoon, the student instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now conducting a continuous case build up and information gathering to locate the whereabouts of Engr. Tagitis. c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search, records show that no such person is being detained in CIDG or any of its department or divisions. 5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions available under the circumstances and continuously search and investigate [sic] the instant case. This immense mandate, however, necessitates the indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation of the victims and witnesses to identify the perpetrators to bring them before the bar of justice and secure their conviction in court. The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:14 xxxx That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth Division of the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced disappearance of Engineer Morced Tagitis. That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at around six o’clock in the morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the Islamic Development Bank who was also one of the participants of the said seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At around six o’clock in the morning of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect involvement of the government. That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough research records show that no such person is being detained in CIDG or any of its department or divisions. That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken immediate investigation and will pursue investigations up to its full completion in order to aid in the prosecution of the person or persons responsible therefore. Likewise attached to the Return of the Writ was PNPPACER15 Chief PS Supt. Leonardo A. Espina’s affidavit which alleged that:16

xxxx That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged abduction was perpetrated by elements of PACER nor was there any indication that the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR. TAGITIS. That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the Police Anti-Crime and Emergency Response (PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now continue to be one of the menace of our society is a respondent in kidnapping or illegal detention case. Simply put, our task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap anyone is anathema to our mission. That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify and apprehend the persons responsible, to recover and preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons responsible, to identify witnesses and obtain statements from them concerning the disappearance and to determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about the disappearance. That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED. That in compliance with my directive, the chief of PACER-MOR sent through fax his written report. That the investigation and measures being undertaken to locate/search the subject in coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the area are ongoing with the instruction not to leave any stone unturned so to speak in the investigation until the perpetrators in the instant case are brought to the bar of justice. That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued. Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit detailing the actions that he had taken upon receipt of the report on Tagitis’ disappearance, viz:17 xxxx 3) For the record: 1. I am the Regional Director of Police Regional Office ARMM now and during the time of the incident; xxxx 4. It is my duty to look into and take appropriate measures on any cases of reported enforced disappearances and when they are being alluded to my office; 5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around

3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila; 6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the Philippine National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest; 7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the student returned back to ASY Pension House, he no longer found Engr. Tagitis there and when he immediately inquired at the information counter regarding his whereabouts [sic], the person in charge in the counter informed him that Engr. Tagitis had left the premises on October 30, 2007 around 1 o’clock p.m. and never returned back to his room; 8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police Provincial Office and other units through phone call and text messages to conduct investigation [sic] to determine the whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission, to recover and preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them concerning his disappearance, to determine the cause and manner of his disappearance, to identify and apprehend the person or persons involved in the disappearance so that they shall be brought before a competent court; 9. Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have caused the following directives: a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter; b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO to expedite compliance to my previous directive; c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of directives for investigation and directing him to undertake exhaustive coordination efforts with the owner of ASY Pension House and student scholars of IDB in order to secure corroborative statements regarding the disappearance and whereabouts of said personality; d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit for polygraph examination with the NBI so as to expunge all clouds of doubt that they may somehow have knowledge or idea to his disappearance; e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering that it is within their area of operational jurisdiction; f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007 addressed to PD

Sulu PPO requiring them to submit complete investigation report regarding the case of Engr. Tagitis; 10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his disappearance and submitted the following: a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-2007; b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring the whereabouts of Engr. Tagitis; c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station, Sulu PPO; 11. This incident was properly reported to the PNP Higher Headquarters as shown in the following: a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the facts of the disappearance and the action being taken by our office; b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for Investigation and Detection Management, NHQ PNP; c) Memorandum dated December addressed to the Director, DIDM;

30,

2007

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office is continuously intensifying the conduct of information gathering, monitoring and coordination for the immediate solution of the case. Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao – as the officer in command of the area of disappearance – to form TASK FORCE TAGITIS.18 Task Force Tagitis On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.21 In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis’ disappearance.22 The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial Governor of Sulu that:23 [Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken and carried away… more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his … [personal] bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for the … IDB Scholarship Fund. In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally went to the

CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their detention cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis, persistently denied any knowledge or complicity in any abduction.25 He further testified that prior to the hearing, he had already mobilized and given specific instructions to their supporting units to perform their respective tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.26 In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:27 9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had no participation neither [sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised regarding the emolument on the Islamic Development Bank Scholar program of IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or sour grape among students who are applying for the scholar [sic] and were denied which was allegedly conducted/screened by the subject being the coordinator of said program. 20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the disappearance of the subject might be due to the funds he maliciously spent for his personal interest and wanted to elude responsibilities from the institution where he belong as well as to the Islamic student scholars should the statement of Prof. Matli be true or there might be a professional jealousy among them. xxxx It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed considering on [sic] the police and military actions in the area particularly the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of its intelligence monitoring and investigation for the early resolution of this instant case. But rest assured, our office, in coordination with other lawenforcement agencies in the area, are continuously and religiously conducting our investigation for the resolution of this case. On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis’ disappearance on the following grounds:28 (1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should have been standard operating procedure in kidnappings or disappearances that the first agenda was for the police to secure clear pictures of the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having been informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued on December 28, 2007. It had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task Force Tagitis’ claim that they already had an "all points bulletin", since November 5, 2007, on the missing person, Engr. Morced Tagitis. How could the police look for someone who disappeared if no clear photograph had been disseminated?

(2) Furthermore, Task Force Tagitis’ COL. AHIROM AJIRIM informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirim’s replacement in the latter’s official designated post. Yet, P/Supt KASIM’s subpoena was returned to this Court unserved. Since this Court was made to understand that it was P/Supt KASIM who was the petitioner’s unofficial source of the military intelligence information that Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM in response to this court’s subpoena and COL. KASIM could have confirmed the military intelligence information that bad elements of the CIDG had abducted Engr. Morced Tagitis. Testimonies for the Respondent On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in the military (whom she did not then identify) gave her information that allowed her to "specify" her allegations, "particularly paragraph 15 of the petition."29 This friend also told her that her husband "[was] in good hands."30 The respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis."31 The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a "highly confidential report" that contained the "alleged activities of Engineer Tagitis" and informed her that her husband was abducted because "he is under custodial investigation" for being a liaison for "J.I. or Jema’ah Islamiah."32 On January 17, 2008, the respondent on cross-examination testified that she is Tagitis’ second wife, and they have been married for thirteen years; Tagitis was divorced from his first wife.33 She last communicated with her husband on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.34 The respondent narrated that she learned of her husband’s disappearance on October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they arranged to meet in Manila on October 31, 2007.35 The respondent explained that it took her a few days (or on November 5, 2007) to personally ask Kunnong to report her husband’s disappearance to the Jolo Police Station, since she had the impression that her husband could not communicate with her because his cellular phone’s battery did not have enough power, and that he would call her when he had fully-charged his cellular phone’s battery.36 The respondent also identified the high-ranking military friend, who gave her the information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.37 She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the "highly confidential report" at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with people belonging to a terrorist group and that he was under custodial investigation. She then told Col. Kasim that her husband was a diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding him the need to give him his medication.38 On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed by the respondent, detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the respondent recounted, viz:40

On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00 o’clock in the morning; we arrived at Zamboanga Airport at around 10:00 o’clock. We [were] fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command (WESTMINCOM). On that same day, we had private conversation with Col. Ancanan. He interviewed me and got information about the personal background of Engr. Morced N. Tagitis. After he gathered all information, he revealed to us the contents of text messages they got from the cellular phone of the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in his condominium unit. While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall to purchase our plane ticket going back to Davao City on November 12, 2007. When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were discussing some points through phone calls. He assured me that my husband is alive and he’s last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my husband, because I contacted some of my friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging to tell me the exact location of my husband and who held him but he refused. While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to contact any AFP officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within nine days. I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis, yet failed to do so. The respondent also narrated her encounter with Col. Kasim, as follows:41 On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for high-ranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis. On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he assured me that he’ll do the best he can to help me find my husband. After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal. On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of which he mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us. He asked a favor to me that "Please don’t quote my Name! Because this is a raw report." He assured me that my husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of my husband because he has aliments and he recently took insulin for he is a diabetic patient. In my petition for writ of amparo, I emphasized the information that I got from Kasim. On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her husband, in relation particularly with the information she received from Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42 In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report and that he showed them a series of text messages from Tagitis’ cellular phone, which showed that Tagitis and his daughter would meet in Manila on October 30, 2007.43 She further narrated that sometime on November 24, 2007, she went with the respondent together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he was not certain whether he was with the PNP or with the Armed Forces of the Philippines (AFP). She further recounted that based on the report Col. Kasim read in their presence, Tagitis was under custodial investigation because he was being charged with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told them that he could not give a copy of the report because it was a "raw report."45 She also related that the Col. Kasim did not tell them exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that despite what his January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any accusation, that Tagitis took away money entrusted to him.52 Prof. Matli confirmed, however, that that he had received an e-mail report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis’ personal account.54 On cross-examination by the respondent’s counsel, Prof. Matli testified that his January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.55 Prof Matli clarified that although he read the affidavit before signing it, he "was not so much aware of… [its] contents."56 On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondent’s testimony, particularly the allegation that he had stated that Tagitis was in the custody of either the military or the PNP.57 Col. Kasim categorically denied the statements made by the respondent in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the custody of the military, since he merely said to the respondent that "your husband is in good hands" and is "probably taken cared of by his armed abductors;" and (3) that Tagitis was under custodial investigation by the military, the PNP or the CIDG Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the information he provided to the respondent was merely a "raw

report" sourced from "barangay intelligence" that still needed confirmation and "follow-up" as to its veracity.60

payment of ransom – the usual modus operandi of these terrorist groups.

On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his informant, who was a "civilian asset," through a letter which he considered as "unofficial."61 Col. Kasim stressed that the letter was only meant for his "consumption" and not for reading by others.62 He testified further that he destroyed the letter right after he read it to the respondent and her companions because "it was not important to him" and also because the information it contained had no importance in relation with the abduction of Tagitis.63 He explained that he did not keep the letter because it did not contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his abduction.64

Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved.

In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondent’s allegation that Tagitis was in the custody of CIDG-Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG "investigates and prosecutes all cases involving violations in the Revised Penal Code particularly those considered as heinous crimes." 66 Col. Pante further testified that the allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis’ reported disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability to conduct any "operation," since they were only assigned to investigate matters and to monitor the terrorism situation.68 He denied that his office conducted any surveillance on Tagitis prior to the latter’s disappearance.69 Col. Pante further testified that his investigation of Tagitis’ disappearance was unsuccessful; the investigation was "still facing a blank wall" on the whereabouts of Tagitis.70

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution of April 9, 2008.73 THE PETITION In this Rule 45 appeal questioning the CA’s March 7, 2008 decision, the petitioners mainly dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence.74 THE COURT’S RULING We do not find the petition meritorious.

THE CA RULING

Sufficiency in Form and Substance

On March 7, 2008, the CA issued its decision71 confirming that the disappearance of Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances.72 The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion that the CIDG was involved was based on the respondent’s testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis’ abduction came from no less than the military – an independent agency of government. The CA thus greatly relied on the "raw report" from Col. Kasim’s asset, pointing to the CIDG’s involvement in Tagitis’ abduction. The CA held that "raw reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as "suspect" Col. Kasim’s subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the abduction of Tagitis.

In questioning the sufficiency in form and substance of the respondent’s Amparo petition, the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the respondent failed to:

The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation" police theories painting the disappearance as "intentional" on the part of Tagitis. He had no previous brushes with the law or any record of overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the police theory that Tagitis was "trying to escape from the clutches of his second wife," on the basis of the respondent’s testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there was "no issue" at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis’ disappearance, since the respondent, the police and the military noted that there was no acknowledgement of Tagitis’ abduction or demand for

1) allege any act or omission the petitioners committed in violation of Tagitis’ rights to life, liberty and security; 2) allege in a complete manner how Tagitis was abducted, the persons responsible for his disappearance, and the respondent’s source of information; 3) allege that the abduction was committed at the petitioners’ instructions or with their consent; 4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her husband; 5) attach the affidavits of witnesses to support her accusations; 6) allege any action or inaction attributable to the petitioners in the performance of their duties in the investigation of Tagitis’ disappearance; and 7) specify what legally available efforts she took to determine the fate or whereabouts of her husband. A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions the petitioners cite):75

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details.76 In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security. To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements – namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security – are present. In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how Tagitis’ rights to life, liberty and security were violated when he was "forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be police intelligence operatives," and then taken "into custody by the respondents’ police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist groups."77 These allegations, in our view, properly pleaded ultimate facts within the pleader’s knowledge about Tagitis’ disappearance, the participation by agents of the State in this disappearance, the failure of the State to release Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause of action. If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these can be used as the affiant’s direct testimony.78 This requirement, however, should not be read as an absolute one that

necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted. Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have been made, specifying the manner and results of the investigation. Effectively, this requirement seeks to establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the reported disappearance.79 We reject the petitioners’ argument that the respondent’s petition did not comply with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately reported Tagitis’ disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had disappeared. The police, however, gave them the "ready answer" that Tagitis could have been abducted by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint" with the PNP Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by the police that her husband was having "a good time with another woman." The disappearance was alleged to have been reported, too, to no less than the Governor of the ARMM, followed by the respondent’s personal inquiries that yielded the factual bases for her petition.80 These allegations, to our mind, sufficiently specify that reports have been made to the police authorities, and that investigations should have followed. That the petition did not state the manner and results of the investigation that the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to perform their duty to investigate, or at the very least, their reported failed efforts, should not be a reflection on the completeness of the petition. To require the respondent to elaborately specify the names, personal circumstances, and addresses of the investigating authority, as well the manner and conduct of the investigation is an overly strict interpretation of Section 5(d), given the respondent’s frustrations in securing an investigation with meaningful results. Under these circumstances, we are more than satisfied that the allegations of the petition on the investigations undertaken are sufficiently complete for purposes of bringing the petition forward. Section 5(e) is in the Amparo Rule to prevent the use of a petition – that otherwise is not supported by sufficient allegations to constitute a proper cause of action – as a means to "fish" for evidence.81 The petitioners contend that the respondent’s petition did not specify what "legally available efforts were taken by the respondent," and that there was an "undue haste" in the filing of the petition when, instead of cooperating with authorities, the respondent immediately invoked the Court’s intervention. We do not see the respondent’s petition as the petitioners view it. Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege "the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission." The following allegations of the respondent’s petition duly outlined the actions she had taken and the frustrations she encountered, thus compelling her to file her petition. xxxx

7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;

Based on these considerations, we rule that the respondent’s petition for the Writ of Amparo is sufficient in form and substance and that the Court of Appeals had every reason to proceed with its consideration of the case.

xxxx

The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an enforced disappearance situation, a brief look at the historical context of the writ and enforced disappearances would be very helpful.

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency; 11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups known to be fighting against the government; 12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia; 13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband; xxxx 15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups; xxxx 17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [the respondent’s] request and pleadings failed to produce any positive results xxxx 20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time; xxxx 25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], their intelligence operatives and the like which are in total violation of the subject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO.

The Desaparecidos

The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.82 The Third Reich’s Night and Fog Program, a State policy, was directed at persons in occupied territories "endangering German security"; they were transported secretly to Germany where they disappeared without a trace. In order to maximize the desired intimidating effect, the policy prohibited government officials from providing information about the fate of these targeted persons.83 In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have "disappeared" during the military regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an international concern when the world noted its widespread and systematic use by State security forces in that continent under Operation Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the practice saw political activists secretly arrested, tortured, and killed as part of governments’ counterinsurgency campaigns. As this form of political brutality became routine elsewhere in the continent, the Latin American media standardized the term "disappearance" to describe the phenomenon. The victims of enforced disappearances were called the "desaparecidos,"86 which literally means the "disappeared ones."87 In general, there are three different kinds of "disappearance" cases: 1) those of people arrested without witnesses or without positive identification of the arresting agents and are never found again; 2) those of prisoners who are usually arrested without an appropriate warrant and held in complete isolation for weeks or months while their families are unable to discover their whereabouts and the military authorities deny having them in custody until they eventually reappear in one detention center or another; and 3) those of victims of "salvaging" who have disappeared until their lifeless bodies are later discovered.88 In the Philippines, enforced disappearances generally fall within the first two categories,89 and 855 cases were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquino’s term, 820 people were reported to have disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of enforced disappearances dropped during former President Fidel V. Ramos’ term when only 87 cases were reported, while the three-year term of former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008, the records show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyo’s administration. The Commission on Human Rights’ records show a total of 636 verified cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined

status.90 Currently, the United Nations Working Group on Enforced or Involuntary Disappearance91 reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.92 Enforced Disappearances Under Philippine Law The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or threats thereof."93 We note that although the writ specifically covers "enforced disappearances," this concept is neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance:94 JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition [for] extrajudicial killings and enforced disappearances. From that definition, then we can proceed to formulate the rules, definite rules concerning the same. CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing extrajudicial killings and enforced disappearances… so initially also we have to [come up with] the nature of these extrajudicial killings and enforced disappearances [to be covered by the Rule] because our concept of killings and disappearances will define the jurisdiction of the courts. So we’ll have to agree among ourselves about the nature of killings and disappearances for instance, in other jurisdictions, the rules only cover state actors. That is an element incorporated in their concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept includes acts and omissions not only of state actors but also of non state actors. Well, more specifically in the case of the Philippines for instance, should these rules include the killings, the disappearances which may be authored by let us say, the NPAs or the leftist organizations and others. So, again we need to define the nature of the extrajudicial killings and enforced disappearances that will be covered by these rules. [Emphasis supplied] 95 In the end, the Committee took cognizance of several bills filed in the House of Representatives96 and in the Senate97 on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude into the ongoing legislative efforts.98 As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws.99 The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the country’s constitutional scheme and power structure. Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to promulgate "rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts," 100 since extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security. Although the Court’s power is strictly procedural and as such does not diminish, increase or modify substantive rights, the legal protection that the Court can provide can be

very meaningful through the procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a difference – even if only procedurally – in a situation when the very same investigating public authorities may have had a hand in the threatened or actual violations of constitutional rights. Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires criminal action before our criminal courts based on our existing penal laws. Our intervention is in determining whether an enforced disappearance has taken place and who is responsible or accountable for this disappearance, and to define and impose the appropriate remedies to address it. The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these senses, our orders and directives relative to the writ are continuing efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully addressed by the complete determination of the fate and the whereabouts of the victim, by the production of the disappeared person and the restoration of his or her liberty and security, and, in the proper case, by the commencement of criminal action against the guilty parties. Enforced Under International Law

Disappearance

From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights.101 It does not only violate the right to life, liberty and security of the desaparecido; it affects their families as well through the denial of their right to information regarding the circumstances of the disappeared family member. Thus, enforced disappearances have been said to be "a double form of torture," with "doubly paralyzing impact for the victims," as they "are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones" and suffer as well the serious economic hardship and poverty that in most cases follow the disappearance of the household breadwinner.102 The UN General Assembly first considered the issue of "Disappeared Persons" in December 1978 under Resolution 33/173. The Resolution expressed the General Assembly’s deep concern arising from "reports from various parts of the world relating to enforced or involuntary disappearances," and requested the "UN Commission on Human Rights to consider the issue of enforced disappearances with a view to making appropriate recommendations."103 In 1992, in response to the reality that the insidious practice of enforced disappearance had become a global phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance (Declaration).104 This Declaration, for the first time, provided in its third preambular clause a working description of enforced disappearance, as follows: Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places

such persons outside the protection of the law. [Emphasis supplied]

In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,116 we held that:

Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (Convention).105 The Convention was opened for signature in Paris, France on February 6, 2007.106 Article 2 of the Convention defined enforced disappearance as follows:

Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. [Emphasis supplied]

For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. [Emphasis supplied] The Convention is the first universal human rights instrument to assert that there is a right not to be subject to enforced disappearance107 and that this right is non-derogable.108 It provides that no one shall be subjected to enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate penalties under their criminal law.109 It also recognizes the right of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and results of the investigation.110 Lastly, it classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are established.111 Binding Effect Action on the Philippines

of

UN

To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the Constitution to protect through its rule-making powers. Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to "promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion."112 Although no universal agreement has been reached on the precise extent of the "human rights and fundamental freedoms" guaranteed to all by the Charter,113 it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states:114 Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. [Emphasis supplied] As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its effects on the country, given our own adherence to "generally accepted principles of international law as part of the law of the land."115

We characterized "generally accepted principles of international law" as norms of general or customary international law that are binding on all states. We held further:117 [G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the original] The most widely accepted statement of sources of international law today is Article 38(1) of the Statute of the International Court of Justice, which provides that the Court shall apply "international custom, as evidence of a general practice accepted as law."118 The material sources of custom include State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly.119 Sometimes referred to as "evidence" of international law,120 these sources identify the substance and content of the obligations of States and are indicative of the "State practice" and "opinio juris" requirements of international law.121 We note the following in these respects: First, barely two years from the adoption of the Declaration, the Organization of American States (OAS) General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994.122 State parties undertook under this Convention "not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees."123 One of the key provisions includes the States’ obligation to enact the crime of forced disappearance in their respective national criminal laws and to establish jurisdiction over such cases when the crime was committed within their jurisdiction, when the victim is a national of that State, and "when the alleged criminal is within its territory and it does not proceed to extradite him," which can be interpreted as establishing universal jurisdiction among the parties to the Inter-American Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in accordance with the Inter-American Convention and have defined activities involving enforced disappearance to be criminal.1251avvphi1 Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with the protection against enforced disappearance. The European Court of Human Rights (ECHR), however, has applied the Convention in a way that provides ample protection for the underlying rights affected by enforced disappearance through the Convention’s Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective remedy. A leading example demonstrating the protection afforded by the European Convention is Kurt v. Turkey,126where the ECHR found a violation of the right to liberty and security of the

disappeared person when the applicant’s son disappeared after being taken into custody by Turkish forces in the Kurdish village of Agilli in November 1993. It further found the applicant (the disappeared person’s mother) to be a victim of a violation of Article 3, as a result of the silence of the authorities and the inadequate character of the investigations undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a violation of Article 13.127

of the law of the land, and which we should act upon to the extent already allowed under our laws and the international conventions that bind us. The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course of a disappearance:136

Third, in the United States, the status of the prohibition on enforced disappearance as part of customary international law is recognized in the most recent edition of Restatement of the Law: The Third,128 which provides that "[a] State violates international law if, as a matter of State policy, it practices, encourages, or condones… (3) the murder or causing the disappearance of individuals."129 We significantly note that in a related matter that finds close identification with enforced disappearance – the matter of torture – the United States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala130 that the prohibition on torture had attained the status of customary international law. The court further elaborated on the significance of UN declarations, as follows:

1) the right to recognition as a person before the law;

These U.N. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote." Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated." Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of ‘binding treaty’ against ‘non-binding pronouncement,' but is rather an authoritative statement of the international community." Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States." Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law. [Citations omitted]

6) the right to a fair trial and to judicial guarantees;

Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN Human Rights Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime against humanity.131 Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as crimes against humanity,132 i.e., crimes "committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack." While more than 100 countries have ratified the Rome Statute,133 the Philippines is still merely a signatory and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in the statutes of other international and hybrid tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia.134 In addition, the implementing legislation of State Parties to the Rome Statute of the ICC has given rise to a number of national criminal provisions also covering enforced disappearance.135 While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime, the above recital shows that enforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now a generally accepted principle of international law, which we should consider a part

2) the right to liberty and security of the person; 3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment; 4) the right to life, when the disappeared person is killed; 5) the right to an identity;

7) the right to an effective remedy, including reparation and compensation; 8) the right to know the truth circumstances of a disappearance.

regarding the

9) the right to protection and assistance to the family; 10) the right to an adequate standard of living; 11) the right to health; and 12) the right to education [Emphasis supplied] Article 2 of the ICCPR, which binds the Philippines as a state party, provides: Article 2 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. [Emphasis supplied] In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective remedy under Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations promptly, thoroughly, and effectively, viz:137 15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights… The Committee attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law… Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly,

thoroughly and effectivelythrough independent and impartial bodies. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy. [Emphasis supplied] The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself give rise to a separate breach of the Covenant, thus:138 18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). [Emphasis supplied] In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to security of persons is a guarantee of the protection of one’s right by the government, held that: The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. [Emphasis supplied] Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to security" not only as a prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive duty to afford protection to the right to liberty. The Court notably quoted the following ECHR ruling: [A]ny deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual, it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete definition of "enforced disappearance," the materials cited above, among others, provide ample guidance and standards on how, through the medium of the Amparo Rule, the Court can provide remedies and protect the constitutional rights to life, liberty and security that underlie every enforced disappearance. Evidentiary Difficulties Posed by the Unique Nature of an Enforced Disappearance Before going into the issue of whether the respondent has discharged the burden of proving the allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter. These difficulties largely arise because the State itself – the party whose involvement is alleged – investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally threefold. First, there may be a deliberate concealment of the identities of the direct perpetrators.141 Experts note that abductors are well organized, armed and usually members of the military or police forces, thus: The victim is generally arrested by the security forces or by persons acting under some form of governmental authority. In many countries the units that plan, implement and execute the program are generally specialized, highly-secret bodies within the armed or security forces. They are generally directed through a separate, clandestine chain of command, but they have the necessary credentials to avoid or prevent any interference by the "legal" police forces. These authorities take their victims to secret detention centers where they subject them to interrogation and torture without fear of judicial or other controls.142 In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the disappearance out of fear for their own lives.143 We have had occasion to note this difficulty in Secretary of Defense v. Manalo144 when we acknowledged that "where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise." Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of evidence in an enforced disappearance – i.e., the corpus delicti or the victim’s body – is usually concealed to effectively thwart the start of any investigation or the progress of one that may have begun.145 The problem for the victim’s family is the State’s virtual monopoly of access to pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez146 that inherent to the practice of enforced disappearance is the deliberate use of the State’s power to destroy the pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect crime.147 Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred.148 "Deniability" is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victim’s human rights.149 Experience shows that government officials typically respond to requests for information about desaparecidos by saying that they are not aware of any disappearance, that the missing people may have fled the country, or that their names have merely been invented.150

These considerations are alive in our minds, as these are the difficulties we confront, in one form or another, in our consideration of this case. Evidence and Burden of Proof in Enforced Disappearances Cases Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree and burden of proof the parties to the case carry, as follows: Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. xxxx Section 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. The respondent who is a private individual must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed or evade responsibility or liability. Section 18. Judgment. – … If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied] These characteristics – namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) – reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required – the duty of public officials and employees to observe extraordinary diligence – point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond. The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the Court its first opportunity to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang Tibay: Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [citations omitted] The statute provides that ‘the rules of evidence prevailing in courts of law and equity shall not be controlling.’ The obvious

purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. [citations omitted] But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. [Emphasis supplied] In Secretary of Defense v. Manalo,152 which was the Court’s first petition for a Writ of Amparo, we recognized that the full and exhaustive proceedings that the substantial evidence standard regularly requires do not need to apply due to the summary nature of Amparo proceedings. We said: The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.[Emphasis supplied] Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties presented by the nature of enforced disappearances, heretofore discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be given a chance to achieve its objectives. These evidentiary difficulties compel the Court to adopt standards appropriate and responsive to the circumstances, without transgressing the due process requirements that underlie every proceeding. In the seminal case of Velasquez Rodriguez,153 the IACHR – faced with a lack of direct evidence that the government of Honduras was involved in Velasquez Rodriguez’ disappearance – adopted a relaxed and informal evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it can be proven that the government carries out a general practice of enforced disappearances and the specific case can be linked to that practice.154 The IACHR took note of the realistic fact that enforced disappearances could be proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was impossible to prove that an individual had been made to disappear. It held: 130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts. 131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis supplied] In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried out by agents who acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay testimony of Zenaida Velásquez, the victim’s sister, who described Manfredo’s kidnapping on the basis of conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court that a former Honduran military official had announced that Manfredo was kidnapped by a special military squadron acting under orders of the Chief of the Armed Forces.155 The IACHR likewise considered the hearsay testimony of a second witness who asserted that he had been told by a Honduran military officer about the disappearance, and a third witness who testified that he had spoken in prison to a man who identified himself as Manfredo.156

Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account. The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness157 is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined by the court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of the child witness.158 These requisites for admission find their counterpart in the present case under the above-described conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases. Assessment of the Evidence The threshold question for our resolution is: was there an enforced disappearance within the meaning of this term under the UN Declaration we have cited? The Convention defines enforced disappearance as "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."159Under this definition, the elements that constitute enforced disappearance are essentially fourfold:160

again. The undisputed conclusion, however, from all concerned – the petitioner, Tagitis’ colleagues and even the police authorities – is that Tagistis disappeared under mysterious circumstances and was never seen again. The respondent injected the causal element in her petition and testimony, as we shall discuss below. We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or arrested Tagitis. If at all, only the respondent’s allegation that Tagistis was under CIDG Zamboanga custody stands on record, but it is not supported by any other evidence, direct or circumstantial. In her direct testimony, the respondent pointed to two sources of information as her bases for her allegation that Tagistis had been placed under government custody (in contrast with CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied a high position in the military and who allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the meeting with the respondent but denied giving her any information about the disappearance. The more specific and productive source of information was Col. Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of the respondent’s testimony: Q: Were you able to speak to other military officials regarding the whereabouts of your husband particularly those in charge of any records or investigation? A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that my husband is being abducted [sic] because he is under custodial investigation because he is allegedly "parang liason ng J.I.", sir. Q: What is J.I.? A: Jema’ah Islamiah, sir. Q: Was there any information that was read to you during one of those visits of yours in that Camp? A: Col. Casim did not furnish me a copy of his report because he said those reports are highly confidential, sir. Q: Was it read to you then even though you were not furnished a copy? A: Yes, sir. In front of us, my friends. Q: And what was the content of that highly confidential report?

(a) arrest, detention, abduction or any form of deprivation of liberty;

A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]

(b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State;

She confirmed this testimony in her cross-examination:

(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person; and (d) placement of the disappeared person outside the protection of the law. [Emphasis supplied] We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never seen nor heard of

Q: You also mentioned that you went to Camp Katitipan in Davao City? A: Yes, ma’am. Q: And a certain Col. Kasim told you that your husband was abducted and under custodial investigation? A: Yes, ma’am. Q: And you mentioned that he showed you a report?

A: Yes, ma’am.

A: Yes, sir.

Q: Were you able to read the contents of that report?

Q: What information did you get from Col. Kasim during that time?

A: He did not furnish me a copy of those [sic] report because those [sic] were highly confidential. That is a military report, ma’am. Q: But you were able to read the contents? A: No. But he read it in front of us, my friends, ma’am. Q: How many were you when you went to see Col. Kasim? A: There were three of us, ma’am. Q: Who were your companions? A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, ma’am.162 xxxx Q: When you were told that your husband is in good hands, what was your reaction and what did you do? A: May binasa kasi sya that my husband has a parang meeting with other people na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot, ma’am."163 xxxx Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information? A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na effort ko because I know that they would deny it, ma’am.164 On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her husband was abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz: Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who was with you when you went there? A: Mary Jean Tagitis, sir. Q: Only the two of you? A: No. We have some other companions. We were four at that time, sir. Q: Who were they? A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir. Q: Were you able to talk, see some other officials at Camp Katitipan during that time? A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir. Q: Were you able to talk to him? A: Yes, sir. Q: The four of you?

A: The first time we met with [him] I asked him if he knew of the exact location, if he can furnish us the location of Engr. Tagitis. And he was reading this report. He told us that Engr. Tagitis is in good hands. He is with the military, but he is not certain whether he is with the AFP or PNP. He has this serious case. He was charged of terrorism because he was under surveillance from January 2007 up to the time that he was abducted. He told us that he was under custodial investigation. As I’ve said earlier, he was seen under surveillance from January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we asked him how long will he be in custodial investigation. He said until we can get some information. But he also told us that he cannot give us that report because it was a raw report. It was not official, sir. Q: You said that he was reading a report, was that report in document form, in a piece of paper or was it in the computer or what? A: As far as I can see it, sir, it is written in white bond paper. I don’t know if it was computerized but I’m certain that it was typewritten. I’m not sure if it used computer, fax or what, sir. Q: When he was reading it to you, was he reading it line by line or he was reading in a summary form? A: Sometimes he was glancing to the report and talking to us, sir.165 xxxx Q: Were you informed as to the place where he was being kept during that time? A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao, Sulu, sir. Q: After that incident, what did you do if any? A: We just left and as I’ve mentioned, we just waited because that raw information that he was reading to us [sic] after the custodial investigation, Engineer Tagitis will be released. [Emphasis supplied]166 Col. Kasim never denied that he met with the respondent and her friends, and that he provided them information based on the input of an unnamed asset. He simply claimed in his testimony that the "informal letter" he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed that the information he provided the respondent was merely a "raw report" from "barangay intelligence" that still needed confirmation and "follow up" as to its veracity.167 To be sure, the respondent’s and Mrs. Talbin’s testimonies were far from perfect, as the petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a "military officer" who told her that "her husband is being abducted because he is under custodial investigation because he is allegedly ‘parang liason ng J.I.’" The petitioners also noted that "Mrs. Talbin’s testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would certainly know that the PNP is not part of the military." Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the petitioners never really steadfastly disputed or presented evidence to refute the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more than anything else, to details that should not affect the credibility of

the respondent and Mrs. Talbin; the inconsistencies are not on material points.168 We note, for example, that these witnesses are lay people in so far as military and police matters are concerned, and confusion between the police and the military is not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather than prevarication169and only tend to strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material circumstances they testified to were integral parts of a well thought of and prefabricated story.170 Based on these considerations and the unique evidentiary situation in enforced disappearance cases, we hold it duly established that Col. Kasim informed the respondent and her friends, based on the informant’s letter, that Tagitis, reputedly a liaison for the JI and who had been under surveillance since January 2007, was "in good hands" and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism. The respondent’s and Mrs. Talbin’s testimonies cannot simply be defeated by Col. Kasim’s plain denial and his claim that he had destroyed his informant’s letter, the critical piece of evidence that supports or negates the parties’ conflicting claims. Col. Kasim’s admitted destruction of this letter – effectively, a suppression of this evidence – raises the presumption that the letter, if produced, would be proof of what the respondent claimed.171 For brevity, we shall call the evidence of what Col. Kasim reported to the respondent to be the "Kasim evidence." Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with government participation, knowledge or consent and that he was held for custodial investigation. We note in this regard that Col. Kasim was never quoted to have said that the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies government intervention through the use of the term "custodial investigation," and does not at all point to CIDG Zamboanga as Tagitis’ custodian. Strictly speaking, we are faced here with a classic case of hearsay evidence – i.e., evidence whose probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person not on the witness stand (the informant).172 To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively states is to acknowledge – as the petitioners effectively suggest – that in the absence of any direct evidence, we should simply dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a statement that the Amparo Rule – despite its terms – is ineffective, as it cannot allow for the special evidentiary difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced disappearances. The Amparo Rule was not promulgated with this intent or with the intent to make it a token gesture of concern for constitutional rights. It was promulgated to provide effective and timely remedies, using and profiting from local and international experiences in extrajudicial killings and enforced disappearances, as the situation may require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced disappearances with the flexibility that these difficulties demand.1avvphi1 To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least take a close look at the available evidence to determine the correct import of every piece of evidence – even of those usually considered inadmissible under the general rules of evidence – taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case.

The evidence about Tagitis’ personal circumstances surrounded him with an air of mystery. He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking away money held in trust, although he confirmed that the IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis’ personal account. Other than these pieces of evidence, no other information exists in the records relating to the personal circumstances of Tagitis. The actual disappearance of Tagitis is as murky as his personal circumstances. While the Amparo petition recited that he was taken away by "burly men believed to be police intelligence operatives," no evidence whatsoever was introduced to support this allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007 – the day he arrived in Jolo – and was never seen again. The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the element of participation by agents of the State and thus brings into question how the State reacted to the disappearance. Denials on the part of the police authorities, and frustration on the part of the respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the government. No evidence was ever offered on whether there was active Jolo police investigation and how and why the Jolo police arrived at this conclusion. The respondent’s own inquiry in Jolo yielded the answer that he was not missing but was with another woman somewhere. Again, no evidence exists that this explanation was arrived at based on an investigation. As already related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive results. Col. Kasim’s story, however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest or abduction), without identifying his abductor/s or the party holding him in custody. The more significant part of Col. Kasim’s story is that the abduction came after Tagitis was seen talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the police agencies participating in the investigation ever pursued these leads. Notably, Task Force Tagitis to which this information was relayed did not appear to have lifted a finger to pursue these aspects of the case. More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the open-ended initial report of the disappearance. The CIDG directed a search in all of its divisions with negative results. These, to the PNP Chief, constituted the exhaustion "of all possible efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported negative results after searching "all divisions and departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records show that no such person is being detained in the CIDG or any of its department or divisions." PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they essentially reported the results of their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the CA constituted Task Force Tagitis, with specific directives on what to do. The negative results reflected in the Returns on the writ were again replicated during the three hearings the CA scheduled. Aside from the previously mentioned "retraction" that Prof. Matli made to correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently denied any knowledge or complicity in any abduction and said that there was no basis to conclude that the CIDG or any police unit had anything to do with the disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis simply ran away with the money in his custody. As already noted above, the Task Force notably did not pursue any investigation about the personal circumstances of Tagitis, his background in relation to the IDB and the background and activities of this Bank itself, and the reported sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of the "assets" who are indispensable in investigations of this nature. These omissions and negative results were aggravated by the CA findings that it was only as late as January 28, 2008 or three months after the disappearance that the police authorities requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was not served, despite the fact that he was designated as Ajirim’s replacement in the latter’s last post. Thus, Col. Kasim was not then questioned. No investigation – even an internal one – appeared to have been made to inquire into the identity of Col. Kasim’s "asset" and what he indeed wrote. We glean from all these pieces of evidence and developments a consistency in the government’s denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these developments is the government’s dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnong’s initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husband’s disappearance, and even at Task Force Tagitis itself. As the CA found through Task Force Tagitis, the investigation was at best haphazard since the authorities were looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a "black" operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention places. In sum, none of the reports on record contains any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning failed to come up to the extraordinary diligence that the Amparo Rule requires.

perspective, the evidence and developments, particularly the Kasim evidence, already establish a concrete case of enforced disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,173the evidence at hand and the developments in this case confirm the fact of the enforced disappearance and government complicity, under a background of consistent and unfounded government denials and haphazard handling. The disappearance as well effectively placed Tagitis outside the protection of the law – a situation that will subsist unless this Court acts. This kind of fact situation and the conclusion reached are not without precedent in international enforced disappearance rulings. While the facts are not exactly the same, the facts of this case run very close to those of Timurtas v. Turkey,174 a case decided by ECHR. The European tribunal in that case acted on the basis of the photocopy of a "post-operation report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of the government of Turkey. The victim's father in this case brought a claim against Turkey for numerous violations of the European Convention, including the right to life (Article 2) and the rights to liberty and security of a person (Article 5). The applicant contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish Workers’ Party (PKK) in the Silopi region. The petition was filed in southeast Turkey nearly six and one half years after the apprehension. According to the father, gendarmes first detained Abdulvahap and then transferred him to another detainment facility. Although there was no eyewitness evidence of the apprehension or subsequent detainment, the applicant presented evidence corroborating his version of events, including a photocopy of a post-operation report signed by the commander of gendarme operations in Silopi, Turkey. The report included a description of Abdulvahap's arrest and the result of a subsequent interrogation during detention where he was accused of being a leader of the PKK in the Silopi region. On this basis, Turkey was held responsible for Abdulvahap’s enforced disappearance. Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the Amparo remedy this Court has established, as applied to the unique facts and developments of this case – we believe and so hold that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations together with Col. Kasim, should be held fully accountable for the enforced disappearance of Tagitis. The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law,"175 specifies the PNP as the governmental office with the mandate "to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative arm" of the PNP and is mandated to "investigate and prosecute all cases involving violations of the Revised Penal Code, particularly those considered as heinous crimes."176 Under the PNP organizational structure, the PNPCIDG is tasked to investigate all major crimes involving violations of the Revised Penal Code and operates against organized crime groups, unless the President assigns the case exclusively to the National Bureau of Investigation (NBI).177 No indication exists in this case showing that the President ever directly intervened by assigning the investigation of Tagitis’ disappearance exclusively to the NBI.

CONCLUSIONS AND THE AMPARO REMEDY Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an unguarded moment, unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and the haphazard investigations cannot but point to this conclusion. For why would the government and its officials engage in their chorus of concealment if the intent had not been to deny what they already knew of the disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of Tagitis be a feather in the government’s cap under the circumstances of the disappearance? From this

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and actions, and the validation of their results through hearings the CA may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action for further investigation, periodically reporting the detailed results of its investigation to the CA for its consideration and action. On behalf of this Court, the CA shall

pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to them as indicated in this Decision and as further CA hearings may indicate; the petitioners’ submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly report containing its actions and recommendations, copy furnished the petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision. WHEREFORE, premises considered, we DENY the petitioners’ petition for review on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following terms: a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced disappearance covered by the Rule on the Writ of Amparo; b. Without any specific pronouncement on exact authorship and responsibility, declaring the government (through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer Morced N. Tagitis; c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued; d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly responsible for the disclosure of material facts known to the government and to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with the obligation to show investigation results acceptable to this Court; e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his "assets" in relation with the enforced disappearance of Engineer Morced N. Tagitis; f. Referring this case back to the Court of Appeals for appropriate proceedings directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results; the PNP and the PNPCIDG shall initially present to the Court of Appeals a plan of action for further investigation, periodically reporting their results to the Court of Appeals for consideration and action; g. Requiring the Court of Appeals to submit to this Court a quarterly report with its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision; h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the Court of Appeals shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision; These directives and those of the Court of Appeals’ made pursuant to this Decision shall be given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police and its Criminal Investigation and Detection Group, under pain of contempt from this Court when the initiatives and efforts at disclosure and investigation constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the circumstances of this case demand. Given the unique nature of Amparo cases and their varying attendant circumstances, these directives –

particularly, the referral back to and monitoring by the CA – are specific to this case and are not standard remedies that can be applied to every Amparo situation. The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED. SO ORDERED.

PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class Plaintiffs in Class Action No. MDL 840, United States District Court of Hawaii, Petitioner, vs. HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, Regional Trial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its court appointed legal representatives in Class Action MDL 840, United States District Court of Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos, Jr., Respondents. DECISION TINGA, J.: Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confines of the restored rule of law. The petitioners in this case are prominent victims of human rights violations1 who, deprived of the opportunity to directly confront the man who once held absolute rule over this country, have chosen to do battle instead with the earthly representative, his estate. The clash has been for now interrupted by a trial court ruling, seemingly comported to legal logic, that required the petitioners to pay a whopping filing fee of over Four Hundred Seventy-Two Million Pesos (P472,000,000.00) in order that they be able to enforce a judgment awarded them by a foreign court. There is an understandable temptation to cast the struggle within the simplistic confines of a morality tale, and to employ short-cuts to arrive at what might seem the desirable solution. But easy, reflexive resort to the equity principle all too often leads to a result that may be morally correct, but legally wrong. Nonetheless, the application of the legal principles involved in this case will comfort those who maintain that our substantive and procedural laws, for all their perceived ambiguity and susceptibility to myriad interpretations, are inherently fair and just. The relief sought by the petitioners is expressly mandated by our laws and conforms to established legal principles. The granting of this petition for certiorari is warranted in order to correct the legally infirm and unabashedly unjust ruling of the respondent judge. The essential facts bear little elaboration. On 9 May 1991, a complaint was filed with the United States District Court (US District Court), District of Hawaii, against the Estate of former Philippine President Ferdinand E. Marcos (Marcos Estate). The action was brought forth by ten Filipino citizens 2 who each alleged having suffered human rights abuses such as arbitrary detention, torture and rape in the hands of police or military forces during the Marcos regime.3 The Alien Tort Act was invoked as basis for the US District Court's jurisdiction over the complaint, as it involved a suit by aliens for tortious violations of international law.4 These plaintiffs brought the action on their own behalf and on behalf of a class of similarly situated individuals, particularly consisting of all current civilian citizens of the Philippines, their heirs and beneficiaries, who between 1972 and 1987 were tortured, summarily executed or had disappeared while in the custody of military or paramilitary groups. Plaintiffs alleged that the class consisted of approximately ten thousand (10,000) members; hence, joinder of all these persons was impracticable.

The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the US Federal Rules of Civil Procedure, the provisions of which were invoked by the plaintiffs. Subsequently, the US District Court certified the case as a class action and created three (3) sub-classes of torture, summary execution and disappearance victims.5Trial ensued, and subsequently a jury rendered a verdict and an award of compensatory and exemplary damages in favor of the plaintiff class. Then, on 3 February 1995, the US District Court, presided by Judge Manuel L. Real, rendered a Final Judgment (Final Judgment) awarding the plaintiff class a total of One Billion Nine Hundred Sixty Four Million Five Thousand Eight Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90). The Final Judgment was eventually affirmed by the US Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December 1996.6 On 20 May 1997, the present petitioners filed Complaint with the Regional Trial Court, City of Makati (Makati RTC) for the enforcement of the Final Judgment. They alleged that they are members of the plaintiff class in whose favor the US District Court awarded damages.7 They argued that since the Marcos Estate failed to file a petition for certiorari with the US Supreme Court after the Ninth Circuit Court of Appeals had affirmed the Final Judgment, the decision of the US District Court had become final and executory, and hence should be recognized and enforced in the Philippines, pursuant to Section 50, Rule 39 of the Rules of Court then in force.8 On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others, the non-payment of the correct filing fees. It alleged that petitioners had only paid Four Hundred Ten Pesos (P410.00) as docket and filing fees, notwithstanding the fact that they sought to enforce a monetary amount of damages in the amount of over Two and a Quarter Billion US Dollars (US$2.25 Billion). The Marcos Estate cited Supreme Court Circular No. 7, pertaining to the proper computation and payment of docket fees. In response, the petitioners claimed that an action for the enforcement of a foreign judgment is not capable of pecuniary estimation; hence, a filing fee of only Four Hundred Ten Pesos (P410.00) was proper, pursuant to Section 7(c) of Rule 141.9 On 9 September 1998, respondent Judge Santiago Javier Ranada10 of the Makati RTC issued the subject Orderdismissing the complaint without prejudice. Respondent judge opined that contrary to the petitioners' submission, the subject matter of the complaint was indeed capable of pecuniary estimation, as it involved a judgment rendered by a foreign court ordering the payment of definite sums of money, allowing for easy determination of the value of the foreign judgment. On that score, Section 7(a) of Rule 141 of the Rules of Civil Procedure would find application, and the RTC estimated the proper amount of filing fees was approximately Four Hundred Seventy Two Million Pesos, which obviously had not been paid. Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge Ranada denied in an Order dated 28 July 1999. From this denial, petitioners filed a Petition for Certiorari under Rule 65 assailing the twin orders of respondent judge.11 They prayed for the annulment of the questioned orders, and an order directing the reinstatement of Civil Case No. 97-1052 and the conduct of appropriate proceedings thereon. Petitioners submit that their action is incapable of pecuniary estimation as the subject matter of the suit is the enforcement of a foreign judgment, and not an action for the collection of a sum of money or recovery of damages. They also point out that to require the class plaintiffs to pay Four Hundred Seventy Two Million Pesos (P472,000,000.00) in filing fees would negate and render inutile the liberal construction ordained by the Rules of Court, as required by Section 6, Rule 1 of the Rules of Civil Procedure, particularly the inexpensive disposition of every action. Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which provides that "Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty," a

mandate which is essentially defeated by the required exorbitant filing fee. The adjudicated amount of the filing fee, as arrived at by the RTC, was characterized as indisputably unfair, inequitable, and unjust. The Commission on Human Rights (CHR) was permitted to intervene in this case.12 It urged that the petition be granted and a judgment rendered, ordering the enforcement and execution of the District Court judgment in accordance with Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For the CHR, the Makati RTC erred in interpreting the action for the execution of a foreign judgment as a new case, in violation of the principle that once a case has been decided between the same parties in one country on the same issue with finality, it can no longer be relitigated again in another country.13 The CHR likewise invokes the principle of comity, and of vested rights. The Court's disposition on the issue of filing fees will prove a useful jurisprudential guidepost for courts confronted with actions enforcing foreign judgments, particularly those lodged against an estate. There is no basis for the issuance a limited pro hac vice ruling based on the special circumstances of the petitioners as victims of martial law, or on the emotionally-charged allegation of human rights abuses. An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge ignored the clear letter of the law when he concluded that the filing fee be computed based on the total sum claimed or the stated value of the property in litigation. In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis for the computation of the filing fee of over P472 Million. The provision states:

Petitioners' complaint may have been lodged against an estate, but it is clearly based on a judgment, the Final Judgment of the US District Court. The provision does not make any distinction between a local judgment and a foreign judgment, and where the law does not distinguish, we shall not distinguish. A reading of Section 7 in its entirety reveals several instances wherein the filing fee is computed on the basis of the amount of the relief sought, or on the value of the property in litigation. The filing fee for requests for extrajudicial foreclosure of mortgage is based on the amount of indebtedness or the mortgagee's claim.14 In special proceedings involving properties such as for the allowance of wills, the filing fee is again based on the value of the property.15 The aforecited rules evidently have no application to petitioners' complaint. Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the subject matter cannot be estimated. The provision reads in full: SEC. 7. Clerk of Regional Trial Court.(b) For filing 1.

of the subject matter cannot be estimated 2.

–

P 500.00

2. P 100,000.00 or than P 150,000.00

more

but

less

–

P 800.00

3. P 150,000.00 or than P 200,000.00

more

but

less

–

P 1,000.00

4. P 200,000.00 or than P 250,000.00

more

but

less

–

P 1,500.00

5. P 250,000.00 than P 300,00.00

more

but

less

–

P 1,750.00

6. P 300,000.00 or than P 400,000.00

more

but

not

more

–

P 2,000.00

7. P 350,000.00 or more but not more than P400,000.00

–

P 2,250.00

8. For each P 1,000.00 of P 400,000.00

–

P 10.00

in

excess

P 600.00

Special civil actions except

shall be governed by

(a) For filing an action or a permissive counterclaim or money claim against an estate not based on judgment, or for filing with leave of court a third-party, fourth-party, etc., complaint, or a complaint in intervention, and for all clerical services in the same time, if the total sum claimed, exclusive of interest, or the started value of the property in litigation, is:

or

---

judicial foreclosure which

SEC. 7. Clerk of Regional Trial Court.-

1. Less than P 100,00.00

Actions where the value

(Emphasis supplied) Obviously, the above-quoted provision covers, on one hand, ordinary actions, permissive counterclaims, third-party, etc. complaints and complaints-in-interventions, and on the other, money claims against estates which are not based on judgment. Thus, the relevant question for purposes of the present petition is whether the action filed with the lower court is a "money claim against an estate not based on judgment."

paragraph (a) above 3.

---

P 600.00

All other actions not involving property

---

P 600.00

In a real action, the assessed value of the property, or if there is none, the estimated value, thereof shall be alleged by the claimant and shall be the basis in computing the fees. It is worth noting that the provision also provides that in real actions, the assessed value or estimated value of the property shall be alleged by the claimant and shall be the basis in computing the fees. Yet again, this provision does not apply in the case at bar. A real action is one where the plaintiff seeks the recovery of real property or an action affecting title to or recovery of possession of real property.16 Neither the complaint nor the award of damages adjudicated by the US District Court involves any real property of the Marcos Estate. Thus, respondent judge was in clear and serious error when he concluded that the filing fees should be computed on the basis of the schematic table of Section 7(a), as the action involved pertains to a claim against an estate based on judgment. What provision, if any, then should apply in determining the filing fees for an action to enforce a foreign judgment? To resolve this question, a proper understanding is required on the nature and effects of a foreign judgment in this jurisdiction. The rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries.17 This principle was prominently affirmed in the leading American case of Hilton v. Guyot18 and expressly recognized in our jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co.19 The conditions required by the Philippines for recognition

and enforcement of a foreign judgment were originally contained in Section 311 of the Code of Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn, was derived from the California Act of March 11, 1872.20 Remarkably, the procedural rule now outlined in Section 48, Rule 39 of the Rules of Civil Procedure has remained unchanged down to the last word in nearly a century. Section 48 states: SEC. 48. Effect of foreign judgments. — The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. There is an evident distinction between a foreign judgment in an action in rem and one in personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the parties and their successors in interest by a subsequent title.21 However, in both cases, the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of jurisdiction or notice to the party,22 collusion, fraud,23 or clear mistake of law or fact.24 Thus, the party aggrieved by the foreign judgment is entitled to defend against the enforcement of such decision in the local forum. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy.25 It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign judgment26 , even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to properly determine its efficacy.27Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity.28 The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign judgment in the Philippines. But there is no question that the filing of a civil complaint is an appropriate measure for such purpose. A civil action is one by which a party sues another for the enforcement or protection of a right,29 and clearly an action to enforce a foreign judgment is in essence a vindication of a right prescinding either from a "conclusive judgment upon title" or the "presumptive evidence of a right." 30 Absent perhaps a statutory grant of jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must be brought before the regular courts.31 There are distinctions, nuanced but discernible, between the cause of action arising from the enforcement of a foreign judgment, and that arising from the facts or allegations that occasioned the foreign judgment. They may pertain to the same set of facts, but there is an essential difference in the right-duty correlatives that are sought to be vindicated. For example, in a complaint for damages against a tortfeasor, the cause of action emanates from the violation of the right of the complainant through the act or omission of the respondent. On the other hand, in a complaint for the enforcement of a foreign judgment awarding damages from the same tortfeasor, for the violation of the same right through the same

manner of action, the cause of action derives not from the tortious act but from the foreign judgment itself. More importantly, the matters for proof are different. Using the above example, the complainant will have to establish before the court the tortious act or omission committed by the tortfeasor, who in turn is allowed to rebut these factual allegations or prove extenuating circumstances. Extensive litigation is thus conducted on the facts, and from there the right to and amount of damages are assessed. On the other hand, in an action to enforce a foreign judgment, the matter left for proof is the foreign judgment itself, and not the facts from which it prescinds. As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or mistake of fact or law. The limitations on review is in consonance with a strong and pervasive policy in all legal systems to limit repetitive litigation on claims and issues.32Otherwise known as the policy of preclusion, it seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of courts not be increased by never-ending litigation of the same disputes, and – in a larger sense – to promote what Lord Coke in the Ferrer's Case of 1599 stated to be the goal of all law: "rest and quietness."33 If every judgment of a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the previously concluded litigation.34 Petitioners appreciate this distinction, and rely upon it to support the proposition that the subject matter of the complaintthe enforcement of a foreign judgmentis incapable of pecuniary estimation. Admittedly the proposition, as it applies in this case, is counter-intuitive, and thus deserves strict scrutiny. For in all practical intents and purposes, the matter at hand is capable of pecuniary estimation, down to the last cent. In the assailed Order, the respondent judge pounced upon this point without equivocation: The Rules use the term "where the value of the subject matter cannot be estimated." The subject matter of the present case is the judgment rendered by the foreign court ordering defendant to pay plaintiffs definite sums of money, as and for compensatory damages. The Court finds that the value of the foreign judgment can be estimated; indeed, it can even be easily determined. The Court is not minded to distinguish between the enforcement of a judgment and the amount of said judgment, and separate the two, for purposes of determining the correct filing fees. Similarly, a plaintiff suing on promissory note for P1 million cannot be allowed to pay only P400 filing fees (sic), on the reasoning that the subject matter of his suit is not the P1 million, but the enforcement of the promissory note, and that the value of such "enforcement" cannot be estimated.35 The jurisprudential standard in gauging whether the subject matter of an action is capable of pecuniary estimation is wellentrenched. The Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals, which ruled: [I]n determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are

cognizable exclusively by courts of first instance (now Regional Trial Courts).

issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.

On the other hand, petitioners cite the ponencia of Justice JBL Reyes in Lapitan v. Scandia,36 from which the rule in Singsong and Raymundo actually derives, but which incorporates this additional nuance omitted in the latter cases:

(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such property shall be determined by the assessed value of the adjacent lots.45

xxx However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of judgment or to foreclose a mortgage, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance.37 Petitioners go on to add that among the actions the Court has recognized as being incapable of pecuniary estimation include legality of conveyances and money deposits,38 validity of a mortgage,39 the right to support,40validity of documents,41 rescission of contracts,42 specific 43 performance, and validity or annulment of judgments.44 It is urged that an action for enforcement of a foreign judgment belongs to the same class. This is an intriguing argument, but ultimately it is self-evident that while the subject matter of the action is undoubtedly the enforcement of a foreign judgment, the effect of a providential award would be the adjudication of a sum of money. Perhaps in theory, such an action is primarily for "the enforcement of the foreign judgment," but there is a certain obtuseness to that sort of argument since there is no denying that the enforcement of the foreign judgment will necessarily result in the award of a definite sum of money. But before we insist upon this conclusion past beyond the point of reckoning, we must examine its possible ramifications. Petitioners raise the point that a declaration that an action for enforcement of foreign judgment may be capable of pecuniary estimation might lead to an instance wherein a first level court such as the Municipal Trial Court would have jurisdiction to enforce a foreign judgment. But under the statute defining the jurisdiction of first level courts, B.P. 129, such courts are not vested with jurisdiction over actions for the enforcement of foreign judgments. Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. — Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions; (2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the

Section 33 of B.P. 129 refers to instances wherein the cause of action or subject matter pertains to an assertion of rights and interests over property or a sum of money. But as earlier pointed out, the subject matter of an action to enforce a foreign judgment is the foreign judgment itself, and the cause of action arising from the adjudication of such judgment. An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a foreign judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the Regional Trial Courts, thus negating the fears of the petitioners. Indeed, an examination of the provision indicates that it can be relied upon as jurisdictional basis with respect to actions for enforcement of foreign judgments, provided that no other court or office is vested jurisdiction over such complaint: Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction: xxx (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions. Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US District Court judgment is one capable of pecuniary estimation. But at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. What provision then governs the proper computation of the filing fees over the instant complaint? For this case and other similarly situated instances, we find that it is covered by Section 7(b)(3), involving as it does, "other actions not involving property." Notably, the amount paid as docket fees by the petitioners on the premise that it was an action incapable of pecuniary estimation corresponds to the same amount required for "other actions not involving property." The petitioners thus paid the correct amount of filing fees, and it was a grave abuse of discretion for respondent judge to have applied instead a clearly inapplicable rule and dismissed the complaint. There is another consideration of supreme relevance in this case, one which should disabuse the notion that the doctrine affirmed in this decision is grounded solely on the letter of the procedural rule. We earlier adverted to the the internationally recognized policy of preclusion,46 as well as the principles of comity, utility and convenience of nations 47 as the basis for the evolution of the rule calling for the recognition and enforcement of foreign judgments. The US Supreme Court in Hilton v. Guyot48 relied heavily on the concept of comity, as especially derived from the landmark treatise of Justice Story in his Commentaries on the Conflict of Laws of 1834.49 Yet the notion of "comity" has since been criticized as one "of dim contours"50 or suffering from a number of fallacies.51 Other conceptual bases for the recognition of foreign judgments have evolved such as the vested rights theory or the modern doctrine of obligation.52

There have been attempts to codify through treaties or multilateral agreements the standards for the recognition and enforcement of foreign judgments, but these have not borne fruition. The members of the European Common Market accede to the Judgments Convention, signed in 1978, which eliminates as to participating countries all of such obstacles to recognition such as reciprocity and révision au fond.53 The most ambitious of these attempts is the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, prepared in 1966 by the Hague Conference of International Law.54 While it has not received the ratifications needed to have it take effect,55 it is recognized as representing current scholarly thought on the topic.56 Neither the Philippines nor the United States are signatories to the Convention. Yet even if there is no unanimity as to the applicable theory behind the recognition and enforcement of foreign judgments or a universal treaty rendering it obligatory force, there is consensus that the viability of such recognition and enforcement is essential. Steiner and Vagts note: . . . The notion of unconnected bodies of national law on private international law, each following a quite separate path, is not one conducive to the growth of a transnational community encouraging travel and commerce among its members. There is a contemporary resurgence of writing stressing the identity or similarity of the values that systems of public and private international law seek to further – a community interest in common, or at least reasonable, rules on these matters in national legal systems. And such generic principles as reciprocity play an important role in both fields.57 Salonga, whose treatise on private international law is of worldwide renown, points out: Whatever be the theory as to the basis for recognizing foreign judgments, there can be little dispute that the end is to protect the reasonable expectations and demands of the parties. Where the parties have submitted a matter for adjudication in the court of one state, and proceedings there are not tainted with irregularity, they may fairly be expected to submit, within the state or elsewhere, to the enforcement of the judgment issued by the court.58 There is also consensus as to the requisites for recognition of a foreign judgment and the defenses against the enforcement thereof. As earlier discussed, the exceptions enumerated in Section 48, Rule 39 have remain unchanged since the time they were adapted in this jurisdiction from long standing American rules. The requisites and exceptions as delineated under Section 48 are but a restatement of generally accepted principles of international law. Section 98 of The Restatement, Second, Conflict of Laws, states that "a valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States," and on its face, the term "valid" brings into play requirements such notions as valid jurisdiction over the subject matter and parties.59Similarly, the notion that fraud or collusion may preclude the enforcement of a foreign judgment finds affirmation with foreign jurisprudence and commentators,60 as well as the doctrine that the foreign judgment must not constitute "a clear mistake of law or fact."61 And finally, it has been recognized that "public policy" as a defense to the recognition of judgments serves as an umbrella for a variety of concerns in international practice which may lead to a denial of recognition.62 The viability of the public policy defense against the enforcement of a foreign judgment has been recognized in this jurisdiction.63 This defense allows for the application of local standards in reviewing the foreign judgment, especially when such judgment creates only a presumptive right, as it does in cases wherein the judgment is against a person.64 The defense is also recognized within the international sphere, as many civil law nations adhere to a broad public policy exception which may result in a denial of recognition when the foreign court, in

the light of the choice-of-law rules of the recognizing court, applied the wrong law to the case.65 The public policy defense can safeguard against possible abuses to the easy resort to offshore litigation if it can be demonstrated that the original claim is noxious to our constitutional values. There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign judgments, or allow a procedure for the enforcement thereof. However, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.66 The classical formulation in international law sees those customary rules accepted as binding result from the combination two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.67 While the definite conceptual parameters of the recognition and enforcement of foreign judgments have not been authoritatively established, the Court can assert with certainty that such an undertaking is among those generally accepted principles of international law.68 As earlier demonstrated, there is a widespread practice among states accepting in principle the need for such recognition and enforcement, albeit subject to limitations of varying degrees. The fact that there is no binding universal treaty governing the practice is not indicative of a widespread rejection of the principle, but only a disagreement as to the imposable specific rules governing the procedure for recognition and enforcement. Aside from the widespread practice, it is indubitable that the procedure for recognition and enforcement is embodied in the rules of law, whether statutory or jurisprudential, adopted in various foreign jurisdictions. In the Philippines, this is evidenced primarily by Section 48, Rule 39 of the Rules of Court which has existed in its current form since the early 1900s. Certainly, the Philippine legal system has long ago accepted into its jurisprudence and procedural rules the viability of an action for enforcement of foreign judgment, as well as the requisites for such valid enforcement, as derived from internationally accepted doctrines. Again, there may be distinctions as to the rules adopted by each particular state,69 but they all prescind from the premise that there is a rule of law obliging states to allow for, however generally, the recognition and enforcement of a foreign judgment. The bare principle, to our mind, has attained the status of opinio juris in international practice. This is a significant proposition, as it acknowledges that the procedure and requisites outlined in Section 48, Rule 39 derive their efficacy not merely from the procedural rule, but by virtue of the incorporation clause of the Constitution. Rules of procedure are promulgated by the Supreme Court,70 and could very well be abrogated or revised by the high court itself. Yet the Supreme Court is obliged, as are all State components, to obey the laws of the land, including generally accepted principles of international law which form part thereof, such as those ensuring the qualified recognition and enforcement of foreign judgments.71 Thus, relative to the enforcement of foreign judgments in the Philippines, it emerges that there is a general right recognized within our body of laws, and affirmed by the Constitution, to seek recognition and enforcement of foreign judgments, as well as a right to defend against such enforcement on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. The preclusion of an action for enforcement of a foreign judgment in this country merely due to an exhorbitant assessment of docket fees is alien to generally accepted practices and principles in international law. Indeed, there are grave concerns in conditioning the amount of the filing fee on the pecuniary award or the value of the property subject of the foreign decision. Such pecuniary award will almost certainly be in foreign denomination, computed in

accordance with the applicable laws and standards of the forum.72 The vagaries of inflation, as well as the relative lowincome capacity of the Filipino, to date may very well translate into an award virtually unenforceable in this country, despite its integral validity, if the docket fees for the enforcement thereof were predicated on the amount of the award sought to be enforced. The theory adopted by respondent judge and the Marcos Estate may even lead to absurdities, such as if applied to an award involving real property situated in places such as the United States or Scandinavia where real property values are inexorably high. We cannot very well require that the filing fee be computed based on the value of the foreign property as determined by the standards of the country where it is located. As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as it recognizes that the subject matter of an action for enforcement of a foreign judgment is the foreign judgment itself, and not the right-duty correlatives that resulted in the foreign judgment. In this particular circumstance, given that the complaint is lodged against an estate and is based on the US District Court's Final Judgment, this foreign judgment may, for purposes of classification under the governing procedural rule, be deemed as subsumed under Section 7(b)(3) of Rule 141, i.e., within the class of "all other actions not involving property." Thus, only the blanket filing fee of minimal amount is required. Finally, petitioners also invoke Section 11, Article III of the Constitution, which states that "[F]ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty." Since the provision is among the guarantees ensured by the Bill of Rights, it certainly gives rise to a demandable right. However, now is not the occasion to elaborate on the parameters of this constitutional right. Given our preceding discussion, it is not necessary to utilize this provision in order to grant the relief sought by the petitioners. It is axiomatic that the constitutionality of an act will not be resolved by the courts if the controversy can be settled on other grounds73 or unless the resolution thereof is indispensable for the determination of the case.74 One more word. It bears noting that Section 48, Rule 39 acknowledges that the Final Judgment is not conclusive yet, but presumptive evidence of a right of the petitioners against the Marcos Estate. Moreover, the Marcos Estate is not precluded to present evidence, if any, of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive as it is on the question of filing fees and no other, does not render verdict on the enforceability of the Final Judgment before the courts under the jurisdiction of the Philippines, or for that matter any other issue which may legitimately be presented before the trial court. Such issues are to be litigated before the trial court, but within the confines of the matters for proof as laid down in Section 48, Rule 39. On the other hand, the speedy resolution of this claim by the trial court is encouraged, and contumacious delay of the decision on the merits will not be brooked by this Court. WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and SET ASIDE, and a new order REINSTATING Civil Case No. 97-1052 is hereby issued. No costs. SO ORDERED.

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, vs. COMELEC AND ESTRELLA C. ELAMPARO Respondents. x-----------------------x G.R. No. 221698-700 MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, vs. COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents. DECISION PEREZ, J.: Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with extremely urgent application for an ex parte issuance of temporary restraining order/status quo ante order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. The Facts Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1 When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4 Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.5 On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines 8 but she opted to continue her studies abroad and left for the United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political Studies.9 On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with her husband who was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July 1991. 11 While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13 On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport No. 017037793 on 19 December 2001. 15 On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for President in the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16 After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her father's funeral arrangements as well as to assist in the settlement of his estate.18 According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest desire to be with her grieving mother, the petitioner and her husband decided to move and reside permanently in the Philippines sometime in the first quarter of 2005.19 The couple began preparing for their resettlement including notification of their children's schools that they will be transferring to Philippine schools for the next semester;20coordination with property movers for the relocation of their household goods, furniture and cars from the U.S. to the Philippines;21 and inquiry with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the country.22 As early as 2004, the petitioner already quit her job in the U.S.23 Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their family home there.26 The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second half of 2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine private schools. On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's remaining household belongings.29 She travelled back to the Philippines on 11 March 2006.30 In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and abandonment of their address in the U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's husband resigned from his

job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine company in July 2006.33 In early 2006, petitioner and her husband acquired a 509square meter lot in Corinthian Hills, Quezon City where they built their family home34 and to this day, is where the couple and their children have been residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name by the Register of Deeds of Quezon City on 1June 2006. On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with petitions for derivative citizenship on behalf of her three minor children on 10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and declared that she is deemed to have reacquired her Philippine citizenship while her children are considered as citizens of the Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39 Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She also secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This passport was renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA.42 On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television Review and Classification Board (MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21 October 2010 petitioner submitted the said affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport.48 On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the United States." 49 On that day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of relinquishing her American citizenship. 50 In the same questionnaire, the petitioner stated that she had resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present.51 On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States" effective 21 October 2010.52 On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines before May 13, 2013."53 Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54 On 19 December 2013, petitioner Diplomatic Passport No. DE0004530. 55

obtained

Philippine

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC, the petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases against her which were the subject of these consolidated cases. Origin of Petition for Certiorari in G.R. No. 221697 A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second Division.59She is convinced that the COMELEC has jurisdiction over her petition.60 Essentially, Elamparo's contention is that petitioner committed material misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May 2016 Elections.61 On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on account of the fact that she was a foundling.62 Elamparo claimed that international law does not confer natural-born status and Filipino citizenship on foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with.64Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a naturalized American citizen.65 According to Elamparo, natural-born citizenship must be continuous from birth.66 On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in the country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her residence could only be counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the Philippines.67 Petitioner seasonably filed her Answer wherein she countered that: (1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order; (2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically admitted, would make false the statement in her COC that she is a natural-born Filipino citizen nor was there any allegation that there was a willful or deliberate intent to misrepresent on her part; (3) she did not make any material misrepresentation in the COC regarding her citizenship and residency qualifications for: a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens; b. foundlings are presumed under international law to have been born of citizens of the place where they are found; c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for President in the May 9, 2016 Elections and that the same is in full force and effect and has not been withdrawn or recanted;

conventions and treaties are not self-executory and that local legislations are necessary in order to give effect to treaty obligations assumed by the Philippines.77 He also stressed that there is no standard state practice that automatically confers natural-born status to foundlings.78

e. the burden was on Elamparo in proving that she did not possess natural-born status;

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former naturalborn citizens and petitioner was not as she was a foundling.79

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as May 24, 2005; g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No. 9225; h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not binding and should give way to evidence on her true date of reacquisition of domicile; i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a purely political question, that is, should she serve as the country's next leader.68 After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution. On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for the purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local Elections, contained material representations which are false. The fallo of the aforesaid Resolution reads: WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69 Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.70 Origin of Petition for Certiorari in G.R. Nos. 221698-700 This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and raffled to its First Division. In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the Presidency.72 Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory construction that what is not included is excluded. He averred that the fact that foundlings were not expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.75 Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings have a nationality.76 According to Tatad, international

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced her American citizenship which was sometime in 2010 or 2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips to the U.S.82 In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born citizen.83 He advanced the view that former natural-born citizens who are repatriated under the said Act reacquires only their Philippine citizenship and will not revert to their original status as naturalborn citizens.84 He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her. Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year residency requirement for President. Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President should be cancelled on the ground that she did not possess the ten-year period of residency required for said candidacy and that she made false entry in her COC when she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May 2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she was then living here as an American citizen and as such, she was governed by the Philippine immigration laws.88 In her defense, petitioner raised the following arguments: First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-born status of petitioner which are not among the recognized grounds for the disqualification of a candidate to an elective office.90 Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC.92 Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be citizens of the country where they are found.94 Consequently, the petitioner is considered as a natural-born citizen of the Philippines.95 Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position that she is a natural-born citizen of the Philippines.98 Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian Hills.99 Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she renounced her American citizenship as long as the three determinants for a change of domicile are complied with.100She reasoned out that there was no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition of a new domicile of choice.101 Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in good faith.102 In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a naturalborn citizen, that she failed to complete the ten (10) year residency requirement, and that she committed material misrepresentation in her COC when she declared therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for the elective position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections. Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration. Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining the COMELEC and its representatives from implementing the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases. The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the: 1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent. 3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015 Resolution of the Second Division. 4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015 Resolution of the First Division. The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections. The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on the exclusive ground" that she made in the certificate a false material representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate. We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2: Section 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions

which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the same basic law stating that: The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. or of the last paragraph of Article VII, Section 4 which provides that: The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators and the Members of the House of Representatives was made

clear by the Constitution. There is no such provision for candidates for these positions. Can the COMELEC be such judge? The opinion of Justice Vicente V. Mendoza in RomualdezMarcos v. Commission on Elections,104 which was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our guide. The citation in Fermin reads: Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following: Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)] The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in § 12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office. Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of [the] disqualifications provided in §4. Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that: Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the qualifications of a candidate. First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because of the very acts for which his

disqualification is being sought. That is why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside. Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they are elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given jurisdiction. Third is the policy underlying the prohibition against preproclamation cases in elections for President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election, returns and qualifications of members of Congress of the President and Vice President, as the case may be.106 To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which states that: Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate.107 was in the 2012 rendition, drastically changed to: Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent court, guilty of, or found by the Commission to be suffering from any disqualification provided by law or the Constitution. A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.

law or the Constitution," neither can the certificate of candidacy be cancelled or denied due course on grounds of false representations regarding his or her qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority being the necessary measure by which the falsity of the representation can be found. The only exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the falsity of representation can be determined. The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case, alleged false representations regarding the candidate's citizenship and residence, forced the COMELEC to rule essentially that since foundlings108 are not mentioned in the enumeration of citizens under the 1935 Constitution,109 they then cannot be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that such relationship is indemonstrable," proceeded to say that "she now has the burden to present evidence to prove her natural filiation with a Filipino parent." The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE. At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino citizen. The private respondents should have shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift the burden to her because such status did not exclude the possibility that her parents were Filipinos, especially as in this case where there is a high probability, if not certainty, that her parents are Filipinos. The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are Filipinos. Under Section 4, Rule 128: Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability of improbability of the fact in issue.

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand be established in a prior proceeding before an authority properly vested with jurisdiction. The prior determination of qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the country was 10,558,278. The statistical probability that any child born in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing ages (1549). In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found in 1968, the majority of the population in Iloilo was Filipino.112

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification "provided by

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an infant in a

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for determining before election the qualifications of candidate. Such that, as presently required, to disqualify a candidate there must be a declaration by a final judgment of a competent court that the candidate sought to be disqualified "is guilty of or found by the Commission to be suffering from any disqualification provided by law or the Constitution."

Roman Catholic Church in Iloilo City.1âwphi1 She also has typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face. There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence. To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor General: Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant and leave their newborn babies behind. We do not face a situation where the probability is such that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our questions properly. What are the chances that the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%. According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that the statistical probability that any child born in the Philippines would be a natural born Filipino is 99.93%. From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of nonFilipino children is 1:661. This means that the statistical probability that any child born in the Philippines on that decade would be a natural born Filipino is 99.83%. We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the statistical probability that a child born in the Philippines would be a natural born Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children here in the Philippines thinking those infants would have better economic opportunities or believing that this country is a tropical paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple has ever considered their child excess baggage that is best left behind. To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the statistical certainty - 99.9% - that any child born in the Philippines would be a natural born citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use of common sense are not separate disciplines. As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there

is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal Revenue, 114 this Court held that: The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.115 As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be covered by the enumeration. The following exchange is recorded: Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a foreign father and a Filipino mother not recognized by the father. xxxx President: [We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural children or to any kind of illegitimate children? Sr. Rafols: To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate children of unknown parents. Sr. Montinola: For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory are considered Spaniards, because the presumption is that a child of unknown parentage is the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no need ... Sr. Rafols: There is a need, because we are relating the conditions that are [required] to be Filipino. Sr. Montinola: But that is the interpretation of the law, therefore, there is no [more] need for amendment. Sr. Rafols: The amendment should read thus: "Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown parentage." Sr. Briones: The amendment [should] mean children born in the Philippines of unknown parentage. Sr. Rafols: The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown. President: Does the gentleman accept the amendment or not? Sr. Rafols: I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner who does not recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother and father [whom the latter] does not recognize, should also be considered as Filipinos.

President: The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones. Sr. Busion: Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature? Sr. Roxas: Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not] refer to them. By international law the principle that children or people born in a country of unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision on the subject exhaustively.116 Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of "unknown parentage" are not citizens but only because their number was not enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and constitution law author Jose Aruego who said: During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and also foundlings; but this amendment was defeated primarily because the Convention believed that the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it was believed that the rules of international law were already clear to the effect that illegitimate children followed the citizenship of the mother, and that foundlings followed the nationality of the place where they were found, thereby making unnecessary the inclusion in the Constitution of the proposed amendment. This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments: We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed that there is no more need to expressly declare foundlings as Filipinos. Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were able to convince their colleagues in the convention that there is no more need to expressly declare foundlings as Filipinos because they are already impliedly so recognized. In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118 The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they were reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument that foundlings are not natural-born Filipinos, the Court must search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings to show that the constitution

really intended to take this path to the dark side and inflict this across the board marginalization." We find no such intent or language permitting discrimination against foundlings. On the contrary, all three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. Of special consideration are several provisions in the present charter: Article II, Section 11 which provides that the "State values the dignity of every human person and guarantees full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which requires the State to defend the "right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." Certainly, these provisions contradict an intent to discriminate against foundlings on account of their unfortunate status. Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified mother was sought to be adopted by aliens. This Court said: In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not over the status of the petitioners, who are foreigners.120 (Underlining supplied) Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and include foundlings as among Filipino children who may be adopted. It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." In the first place, "having to perform an act" means that the act must be personally done by the citizen. In this instance, the determination of foundling status is done not by the child but by the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it. In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling

Certificate issued in her favor.122 The Decree of Adoption issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's status as a foundling.123

property or birth, the right, to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation.124 On the other hand, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. Generally accepted principles of international law include international custom as evidence of a general practice accepted as law, and general principles of law recognized by civilized nations.125 International customary rules are accepted as binding as a result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinionjuris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.126 "General principles of law recognized by civilized nations" are principles "established by a process of reasoning" or judicial logic, based on principles which are "basic to legal systems generally,"127 such as "general principles of equity, i.e., the general principles of fairness and justice," and the "general principle against discrimination" which is embodied in the "Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation."128 These are the same core principles which underlie the Philippine Constitution itself, as embodied in the due process and equal protection clauses of the Bill of Rights.129

3. Every child has the right to acquire a nationality.

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted principles of international law and binding on the State.130 Article 15 thereof states:

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within the territory of parents possessing the nationality of that State.

1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on our country: Article 7 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:" Article 24 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin,

2. Every child shall be registered immediately after birth and shall have a name.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old. The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality of the country of birth," to wit: Article 14 A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage is known. A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found. (Underlining supplied) The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness: Article 2

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the "International Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said convention was nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international law although the convention had been ratified by only sixteen states and had not even come into force and which needed the ratification of a minimum of twenty states. Additionally, as petitioner points out, the Court was content with the practice of international and regional state organs, regional state practice in Latin America, and State Practice in the United States. Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966 "Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also pointed out that that nine member countries of the European Common Market

had acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen countries were considered and yet, there was pronouncement that recognition of foreign judgments was widespread practice. Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of international law" are based not only on international custom, but also on "general principles of law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which are "basic to legal systems generally,"136 support the notion that the right against enforced disappearances and the recognition of foreign judgments, were correctly considered as "generally accepted principles of international law" under the incorporation clause. Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found. Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the executive department, acting through the DFA, considers foundlings as Philippine citizens. Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption that their parents are nationals of the Philippines. As the empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty. In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which suffers from a misfortune not of their own making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the community of nations. The Solicitor General's warning in his opening statement is relevant: .... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were drafted because the world community is concerned that the situation of foundlings renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the international instruments which seek to protect and uplift foundlings a tool to deny them political status or to accord them second-class citizenship.138 The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general and of R.A. No. 9225 in particular. In the seminal case of Bengson Ill v. HRET, explained as follows:

140

repatriation was

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship." The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the Congress' determination. More importantly, COMELEC's position that natural-born status must be continuous was already rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and that there is no third category for repatriated citizens: It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives.146 The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the condonation doctrine, we cautioned that it "should be prospective in application for the reason that judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part of the legal system of the Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its abandonment. Consequently, the people's reliance thereupon should be respected."148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents, and this misled the BI to presume that she was a natural-born Filipino. It has been contended that the data required were the names of her biological parents which are precisely unknown. This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to sever all legal ties between the biological parents and the adoptee, except when the biological parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation that it is an amended issue."150 That law also requires that "[a]ll records, books, and papers relating to the adoption cases in the files of the court, the Department [of Social Welfare and Development], or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to state that her adoptive parents were her birth parents as that was what would be stated in her birth certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not obligated to disclose that she was an adoptee. Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse of discretion. On Residence The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material representation when she stated in her COC that she has before and until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11) months. Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before the 2016 elections, is true. The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of Residence in the Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S. When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile.152 To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.153 Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight company to arrange for the shipment of their household items weighing about 28,000 pounds to the

Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her children showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and parking slot issued in February 2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from the First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to sell the family home). The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution in the Tatad, Contreras and Valdez cases. However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two requisites, namely, physical presence and animus manendi, but maintained there was no animus non-revertendi.154 The COMELEC disregarded the import of all the evidence presented by petitioner on the basis of the position that the earliest date that petitioner could have started residence in the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents also added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of an alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted. But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by the candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue there was whether the candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to prove her one-year residency." It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court had no choice but to hold that residence could be counted only from acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools, getting quotes from the freight company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess items to the Salvation Army, her husband resigning from U.S. employment right after selling the U.S.

house) and permanently relocate to the Philippines and actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying property here, constructing a residence here, returning to the Philippines after all trips abroad, her husband getting employed here). Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good. In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who must leave after one year. Included in the law is a former Filipino who has been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes a balikbayan program "providing the opportunity to avail of the necessary training to enable the balikbayan to become economically self-reliant members of society upon their return to the country" 164in line with the government's "reintegration program."165 Obviously, balikbayans are not ordinary transients. Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free period is obviously granted him to allow him to re-establish his life and reintegrate himself into the community before he attends to the necessary formal and legal requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by enrolling her children and buying property while awaiting the return of her husband and then applying for repatriation shortly thereafter. No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There is no judicial precedent that comes close to the facts of residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other cases cited by the respondents that the Court intended to have its rulings there apply to a situation where the facts are different. Surely, the issue of residence has been decided particularly on the facts-of-the case basis. To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine resident only in November 2006. In doing so, the COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as false. As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-May 2006 which was the period when the U.S. house was sold and her husband returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that residence could be counted from 25 May 2005. Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to the day before May 09, 2016." The COMELEC would not have revised the query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her husband is plausible given the evidence that she had returned a year before. Such evidence, to repeat, would include her passport and the school records of her children. It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission against petitioner. It could be given in evidence against her, yes, but it was by no means conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put seven (7) months as her period of residence where the required period was a minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the constitutions residency qualification requirement." The COMELEC ought to have looked at the evidence presented and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period of residency. The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on 24 May 2005 not because it was false, but only because COMELEC took the position that domicile could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10) years and eleven (11) months, she could do so in good faith. For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo warranto had been filed against her with the SET as early as August 2015. The event from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial candidacy. Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the press. Respondents have not disputed petitioner's evidence on this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the circumstances that surrounded the statement were already matters of public record and were not hidden. Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood the question and could have truthfully indicated a longer period. Her answer in the SET case was a matter of public record. Therefore, when petitioner accomplished her COC for President on 15 October 2015, she could not be said to have been attempting to hide her erroneous statement in her 2012 COC for Senator which was expressly mentioned in her Verified Answer. The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that: Concededly, a candidate's disqualification to run for public office does not necessarily constitute material misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility and qualifications for elective office), but should evince a

deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to one's qualifications to run for public office.168 In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of which can evince animus manendi to the Philippines and animus non revertedi to the United States of America. The veracity of the events of coming and staying home was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and therefore an admission that her residence in the Philippines only commence sometime in November 2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of the person that determines residence for purposes of compliance with the constitutional requirement of residency for election as President. It ignores the easily researched matter that cases on questions of residency have been decided favorably for the candidate on the basis of facts of residence far less in number, weight and substance than that presented by petitioner. 169 It ignores, above all else, what we consider as a primary reason why petitioner cannot be bound by her declaration in her COC for Senator which declaration was not even considered by the SET as an issue against her eligibility for Senator. When petitioner made the declaration in her COC for Senator that she has been a resident for a period of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency requirements for election as Senator which was satisfied by her declared years of residence. It was uncontested during the oral arguments before us that at the time the declaration for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the general public was never made aware by petitioner, by word or action, that she would run for President in 2016. Presidential candidacy has a lengthof-residence different from that of a senatorial candidacy. There are facts of residence other than that which was mentioned in the COC for Senator. Such other facts of residence have never been proven to be false, and these, to repeat include: [Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to finish pending projects and arrange the sale of their family home. Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go to school. In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was completed. Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006 and began working for a Philippine company in July 2006. In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their family home.170 In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive ground of false representation, to consider no other date than that mentioned by petitioner in her COC for Senator. All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits. WHEREFORE, the petition is GRANTED. The Resolutions, to wit: 1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that: [T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora PoeLlamanzares is hereby GRANTED. 2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections. 3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second Division stating that: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED. 4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First Division. are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016. SO ORDERED.

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March 2006. In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of their address in the US. The family home in the US was sole on 27 April 2006.