EN BANC

G.R. No. 192935

legislature to create a public office and to appropriate funds

therefor.7

December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE PHILIPPINE TRUTH COMMISSION OF
2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO,
JR., REP. SIMEON A. DATUMANONG, and REP.
ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
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.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is
through the Constitution that the fundamental powers of
government are established, limited and defined, and by
which these powers are distributed among the several
departments.2 The Constitution is the basic and paramount
law to which all other laws must conform and to which all
persons, including the highest officials of the land, must
defer.3 Constitutional doctrines must remain steadfast no
matter what may be the tides of time. It cannot be simply
made to sway and accommodate the call of situations and
much more tailor itself to the whims and caprices of
government and the people who run it.4
For consideration before the Court are two consolidated
cases5 both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30,
2010, entitled "Creating the Philippine Truth Commission of
2010."
The first case is G.R. No. 192935, a special civil action for
prohibition instituted by petitioner Louis Biraogo (Biraogo) in
his capacity as a citizen and taxpayer. Biraogo assails
Executive Order No. 1 for being violative of the legislative
power of Congress under Section 1, Article VI of the
Constitution6 as it usurps the constitutional authority of the

The second case, G.R. No. 193036, is a special civil action

for certiorari and prohibition filed by petitioners Edcel C.
Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and
Orlando B. Fua, Sr. (petitioners-legislators) as incumbent
members of the House of Representatives.
The genesis of the foregoing cases can be traced to the
events prior to the historic May 2010 elections, when then
Senator Benigno Simeon Aquino III declared his staunch
condemnation of graft and corruption with his slogan, "Kung
walang corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry out this
noble objective, catapulted the good senator to the
presidency.
To transform his campaign slogan into reality, President
Aquino found a need for a special body to investigate
reported cases of graft and corruption allegedly committed
during the previous administration.
Thus, at the dawn of his administration, the President on
July 30, 2010, signed Executive Order No. 1 establishing
the Philippine Truth Commission of 2010 (Truth
Commission). Pertinent provisions of said executive order
read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF
2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of
the Philippines solemnly enshrines the principle that a public
office is a public trust and mandates that public officers and
employees, who are servants of the people, must at all times
be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this
mandate;
WHEREAS, corruption is an evil and scourge which
seriously affects the political, economic, and social life of a
nation; in a very special way it inflicts untold misfortune and
misery on the poor, the marginalized and underprivileged
sector of society;
WHEREAS, corruption in the Philippines has reached very
alarming levels, and undermined the peoples trust and
confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of
the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by
the filing of the appropriate cases against those involved, if
warranted, and to deter others from committing the evil,
restore the peoples faith and confidence in the Government
and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for

the Presidency in the last elections "kung walang corrupt,
walang mahirap" expresses a solemn pledge that if elected,
he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated
solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during the
previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive
Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President
the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III,
President of the Republic of the Philippines, by virtue of the
powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily
seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees,
their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.
The Commission shall be composed of a Chairman and four
(4) members who will act as an independent collegial body.
SECTION 2. Powers and Functions. The Commission,
which shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative
Code of 1987, is primarily tasked to conduct a thorough factfinding investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a) Identify and determine the reported
cases of such graft and corruption which
it will investigate;
b) Collect, receive, review and evaluate
evidence related to or regarding the
cases of large scale corruption which it
has chosen to investigate, and to this
end require any agency, official or
employee of the Executive Branch,
including government-owned or
controlled corporations, to produce
documents, books, records and other
papers;

c) Upon proper request or

representation, obtain information and
documents from the Senate and the
House of Representatives records of
investigations conducted by committees
thereof relating to matters or subjects
being investigated by the Commission;
d) Upon proper request and
representation, obtain information from
the courts, including the Sandiganbayan
and the Office of the Court
Administrator, information or documents
in respect to corruption cases filed with
the Sandiganbayan or the regular
courts, as the case may be;
e) Invite or subpoena witnesses and
take their testimonies and for that
purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is
a need to utilize any person as a state
witness to ensure that the ends of
justice be fully served, that such person
who qualifies as a state witness under
the Revised Rules of Court of the
Philippines be admitted for that purpose;
g) Turn over from time to time, for
expeditious prosecution, to the
appropriate prosecutorial authorities, by
means of a special or interim report and
recommendation, all evidence on
corruption of public officers and
employees and their private sector coprincipals, accomplices or accessories,
if any, when in the course of its
investigation the Commission finds that
there is reasonable ground to believe
that they are liable for graft and
corruption under pertinent applicable
laws;
h) Call upon any government
investigative or prosecutorial agency
such as the Department of Justice or
any of the agencies under it, and the
Presidential Anti-Graft Commission, for
such assistance and cooperation as it
may require in the discharge of its
functions and duties;
i) Engage or contract the services of
resource persons, professionals and
other personnel determined by it as
necessary to carry out its mandate;
j) Promulgate its rules and regulations or
rules of procedure it deems necessary
to effectively and efficiently carry out the
objectives of this Executive Order and to
ensure the orderly conduct of its
investigations, proceedings and

hearings, including the presentation of

evidence;
k) Exercise such other acts incident to
or are appropriate and necessary in
connection with the objectives and
purposes of this Order.
SECTION 3. Staffing Requirements. x x x.
SECTION 4. Detail of Employees. x x x.

SECTION 18. Separability Clause. If any provision of this

Order is declared unconstitutional, the same shall not affect
the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall take
effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July
2010.
(SGD.) BENIGNO S. AQUINO III
By the President:

SECTION 5. Engagement of Experts. x x x

SECTION 6. Conduct of Proceedings. x x x.
SECTION 7. Right to Counsel of Witnesses/Resource
Persons. x x x.
SECTION 8. Protection of Witnesses/Resource
Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or
Give Testimony. Any government official or personnel
who, without lawful excuse, fails to appear upon subpoena
issued by the Commission or who, appearing before the
Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when
required, shall be subject to administrative disciplinary
action. Any private person who does the same may be dealt
with in accordance with law.
SECTION 10. Duty to Extend Assistance to the
Commission. x x x.
SECTION 11. Budget for the Commission. The Office of
the President shall provide the necessary funds for the
Commission to ensure that it can exercise its powers,
execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as
possible.
SECTION 12. Office. x x x.
SECTION 13. Furniture/Equipment. x x x.
SECTION 14. Term of the Commission. The Commission
shall accomplish its mission on or before December 31,
2012.
SECTION 15. Publication of Final Report. x x x.
SECTION 16. Transfer of Records and Facilities of the
Commission. x x x.
SECTION 17. Special Provision Concerning Mandate. If
and when in the judgment of the President there is a need to
expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and
instances of graft and corruption during the prior
administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the
Philippine Truth Commission (PTC) is a mere ad hoc body
formed under the Office of the President with the primary
task to investigate reports of graft and corruption committed
by third-level public officers and employees, their coprincipals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and
recommendations to the President, Congress and the
Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within
the Office of the President Proper and subject to his control.
Doubtless, it constitutes a public office, as an ad hoc body is
one.8
To accomplish its task, the PTC shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of
the Administrative Code of 1987. It is not, however, a quasijudicial body as it cannot adjudicate, arbitrate, resolve, settle,
or render awards in disputes between contending parties. All
it can do is gather, collect and assess evidence of graft and
corruption and make recommendations. It may have
subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a factfinding body, it cannot determine from such facts if probable
cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal,
civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other
countries which have been created as official, transitory and
non-judicial fact-finding bodies "to establish the facts and
context of serious violations of human rights or of
international humanitarian law in a countrys past."9 They are
usually established by states emerging from periods of
internal unrest, civil strife or authoritarianism to serve as
mechanisms for transitional justice.
Truth commissions have been described as bodies that
share the following characteristics: (1) they examine only
past events; (2) they investigate patterns of abuse
committed over a period of time, as opposed to a particular
event; (3) they are temporary bodies that finish their work
with the submission of a report containing conclusions and
recommendations; and (4) they are officially sanctioned,
authorized or empowered by the State.10"Commissions
members are usually empowered to conduct research,
support victims, and propose policy recommendations to

prevent recurrence of crimes. Through their investigations,

the commissions may aim to discover and learn more about
past abuses, or formally acknowledge them. They may aim
to prepare the way for prosecutions and recommend
institutional reforms."11

prosecution officials and personnel of the previous

administration as if corruption is their peculiar
species even as it excludes those of the other
administrations, past and present, who may be
indictable.

Thus, their main goals range from retribution to

reconciliation. The Nuremburg and Tokyo war crime tribunals
are examples of a retributory or vindicatory body set up to try
and punish those responsible for crimes against humanity. A
form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal
function of which was to heal the wounds of past violence
and to prevent future conflict by providing a cathartic
experience for victims.

(e) The creation of the "Philippine Truth

Commission of 2010" violates the consistent and
general international practice of four decades
wherein States constitute truth commissions to
exclusively investigate human rights violations,
which customary practice forms part of the
generally accepted principles of international law
which the Philippines is mandated to adhere to
pursuant to the Declaration of Principles enshrined
in the Constitution.

The PTC is a far cry from South Africas model. The latter
placed more emphasis on reconciliation than on judicial
retribution, while the marching order of the PTC is the
identification and punishment of perpetrators. As one
writer12 puts it:
The order ruled out reconciliation. It translated the Draconian
code spelled out by Aquino in his inaugural speech: "To
those who talk about reconciliation, if they mean that they
would like us to simply forget about the wrongs that they
have committed in the past, we have this to say: There can
be no reconciliation without justice. When we allow crimes to
go unpunished, we give consent to their occurring over and
over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1,
the petitioners asked the Court to declare it unconstitutional
and to enjoin the PTC from performing its functions. A
perusal of the arguments of the petitioners in both cases
shows that they are essentially the same. The petitionerslegislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as
it arrogates the power of the Congress to create a
public office and appropriate funds for its
operation.
(b) The provision of Book III, Chapter 10, Section
31 of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize
the Office of the President to achieve economy,
simplicity and efficiency does not include the
power to create an entirely new public office which
was hitherto inexistent like the "Truth
Commission."
(c) E.O. No. 1 illegally amended the Constitution
and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers
duplicating, if not superseding, those of the Office
of the Ombudsman created under the 1987
Constitution and the Department of Justice
created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause
as it selectively targets for investigation and

(f) The creation of the "Truth Commission" is an

exercise in futility, an adventure in partisan
hostility, a launching pad for trial/conviction by
publicity and a mere populist propaganda to
mistakenly impress the people that widespread
poverty will altogether vanish if corruption is
eliminated without even addressing the other
major causes of poverty.
(g) The mere fact that previous commissions were
not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an
eventual question on the constitutionality and
validity of an executive issuance or even a
statute."13
In their Consolidated Comment,14 the respondents, through
the Office of the Solicitor General (OSG), essentially
questioned the legal standing of petitioners and defended
the assailed executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of
Congress to create a public office because the
Presidents executive power and power of control
necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution,
Revised Administrative Code of 1987 (E.O. No.
292), 15 Presidential Decree (P.D.) No. 141616 (as
amended by P.D. No. 1772), R.A. No. 9970,17 and
settled jurisprudence that authorize the President
to create or form such bodies.
2] E.O. No. 1 does not usurp the power of
Congress to appropriate funds because there is no
appropriation but a mere allocation of funds
already appropriated by Congress.
3] The Truth Commission does not duplicate or
supersede the functions of the Office of the
Ombudsman (Ombudsman) and the Department
of Justice (DOJ), because it is a fact-finding body
and not a quasi-judicial body and its functions do
not duplicate, supplant or erode the latters
jurisdiction.
4] The Truth Commission does not violate the
equal protection clause because it was validly
created for laudable purposes.

The OSG then points to the continued existence and validity

of other executive orders and presidential issuances creating
similar bodies to justify the creation of the PTC such as
Presidential Complaint and Action Commission(PCAC) by
President Ramon B. Magsaysay, Presidential Committee on
Administrative Performance Efficiency(PCAPE) by President
Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO)by President Ferdinand E.
Marcos.18

The Court disagrees with the OSG in questioning the legal

standing of the petitioners-legislators to assail Executive
Order No. 1. Evidently, their petition primarily invokes
usurpation of the power of the Congress as a body to which
they belong as members. This certainly justifies their resolve
to take the cudgels for Congress as an institution and
present the complaints on the usurpation of their power and
rights as members of the legislature before the Court. As
held in Philippine Constitution Association v. Enriquez,21

From the petitions, pleadings, transcripts, and memoranda,

the following are the principal issues to be resolved:

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.

1. Whether or not the petitioners have the legal

standing to file their respective petitions and
question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates
the principle of separation of powers by usurping
the powers of Congress to create and to
appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants
the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates
the equal protection clause; and
5. Whether or not petitioners are entitled to
injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality
of Executive Order No. 1, the Court needs to ascertain
whether the requisites for a valid exercise of its power of
judicial review are present.
Like almost all powers conferred by the Constitution, the
power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act
must have the standing to question the validity of the subject
act or issuance; otherwise stated, he must have a personal
and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the
petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitionerslegislators to file their petition for failure to demonstrate their
personal stake in the outcome of the case. It argues that the
petitioners have not shown that they have sustained or are in
danger of sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject of the
commissions investigations, petitioners will not sustain injury
in its creation or as a result of its proceedings.20

An act of the Executive which injures the institution of

Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress.
In such a case, any member of Congress can have a resort
to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are
allowed to question the validity of any official action which, to
their mind, infringes on their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer,
he has no standing to question the creation of the PTC and
the budget for its operations.23 It emphasizes that the funds
to be used for the creation and operation of the commission
are to be taken from those funds already appropriated by
Congress. Thus, the allocation and disbursement of funds
for the commission will not entail congressional action but
will simply be an exercise of the Presidents power over
contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown
that he sustained, or is in danger of sustaining, any personal
and direct injury attributable to the implementation of
Executive Order No. 1. Nowhere in his petition is an
assertion of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the axe over
presidential issuances in defense of the Constitution. The
case of David v. Arroyo24 explained the deep-seated rules on
locus standi. Thus:
Locus standi is defined as "a right of appearance in a court
of justice on a given question." In private suits, standing is
governed by the "real-parties-in interest" rule as contained in
Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be
prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit." Succinctly
put, the plaintiffs standing is based on his own right to the
relief sought.
The difficulty of determining locus standi arises in public
suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person
who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a
"citizen," or taxpayer." In either case, he has to adequately

show that he is entitled to seek judicial protection. In other

words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first
laid down in Beauchamp v. Silk, where it was held that the
plaintiff in a taxpayers suit is in a different category from the
plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court inPeople ex rel Case
v. Collins: "In matter of mere public right, howeverthe
people are the real partiesIt is at least the right, if not the
duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayers
suits, Terr v. Jordan held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking
judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the
United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt, later reaffirmed
inTileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show
that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the "direct injury" test in our
jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has
sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse
Trainers Association v. De la Fuente, Pascual v. Secretary of
Public Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the
rule on standing is a matter of procedure, hence, can be
relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of
paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v.
Torres,26 the Court held that in cases of paramount
importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a
suit may be allowed to prosper even where there is no direct
injury to the party claiming the right of judicial review. In the
first Emergency Powers Cases,27 ordinary citizens and
taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect
and general interest shared in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29are

non-existent in this case. The Court, however, finds reason

in Biraogos assertion that the petition covers matters of
transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional issues in
the petition which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents.
Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and
the Bar, they should be resolved for the guidance of
all.30 Undoubtedly, the Filipino people are more than
interested to know the status of the Presidents first effort to
bring about a promised change to the country. The Court
takes cognizance of the petition not due to overwhelming
political undertones that clothe the issue in the eyes of the
public, but because the Court stands firm in its oath to
perform its constitutional duty to settle legal controversies
with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts
that the Truth Commission is a public office and not merely
an adjunct body of the Office of the President.31 Thus, in
order that the President may create a public office he must
be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner,
such power cannot be presumed32 since there is no provision
in the Constitution or any specific law that authorizes the
President to create a truth commission.33 He adds that
Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office,
cannot serve as basis for the creation of a truth commission
considering the aforesaid provision merely uses verbs such
as "reorganize," "transfer," "consolidate," "merge," and
"abolish."34 Insofar as it vests in the President the plenary
power to reorganize the Office of the President to the extent
of creating a public office, Section 31 is inconsistent with the
principle of separation of powers enshrined in the
Constitution and must be deemed repealed upon the
effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue
that the creation of a public office lies within the province of
Congress and not with the executive branch of government.
They maintain that the delegated authority of the President
to reorganize under Section 31 of the Revised Administrative
Code: 1) does not permit the President to create a public
office, much less a truth commission; 2) is limited to the
reorganization of the administrative structure of the Office of
the President; 3) is limited to the restructuring of the internal
organs of the Office of the President Proper, transfer of
functions and transfer of agencies; and 4) only to achieve
simplicity, economy and efficiency.36 Such continuing
authority of the President to reorganize his office is limited,
and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively
legislative about the creation by the President of a factfinding body such as a truth commission. Pointing to
numerous offices created by past presidents, it argues that
the authority of the President to create public offices within
the Office of the President Proper has long been
recognized.37 According to the OSG, the Executive, just like
the other two branches of government, possesses the
inherent authority to create fact-finding committees to assist
it in the performance of its constitutionally mandated
functions and in the exercise of its administrative

functions.38 This power, as the OSG explains it, is but an

adjunct of the plenary powers wielded by the President
under Section 1 and his power of control under Section 17,
both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the
power to conduct fact-finding investigations, pursuant to his
duty to ensure that all laws are enforced by public officials
and employees of his department and in the exercise of his
authority to assume directly the functions of the executive
department, bureau and office, or interfere with the
discretion of his officials.40 The power of the President to
investigate is not limited to the exercise of his power of
control over his subordinates in the executive branch, but
extends further in the exercise of his other powers, such as
his power to discipline subordinates,41 his power for rule
making, adjudication and licensing purposes42 and in order to
be informed on matters which he is entitled to know.43
The OSG also cites the recent case of Banda v.
Ermita,44 where it was held that the President has the power
to reorganize the offices and agencies in the executive
department in line with his constitutionally granted power of
control and by virtue of a valid delegation of the legislative
power to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control
necessarily includes the power to create offices. For the
OSG, the President may create the PTC in order to, among
others, put a closure to the reported large scale graft and
corruption in the government.45
The question, therefore, before the Court is this: Does the
creation of the PTC fall within the ambit of the power to
reorganize as expressed in Section 31 of the Revised
Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and
structural lines: (1) restructuring the internal organization of
the Office of the President Proper by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any
function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any
agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision
refers to reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of
functions. These point to situations where a body or an office
is already existent but a modification or alteration thereof has
to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision.
Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the
Office of the President under Section 31 is a misplaced
supposition, even in the plainest meaning attributable to the
term "restructure" an "alteration of an existing structure."
Evidently, the PTC was not part of the structure of the Office
of the President prior to the enactment of Executive Order
No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive
Secretary,46
But of course, the list of legal basis authorizing the President
to reorganize any department or agency in the executive
branch does not have to end here. We must not lose sight of
the very source of the power that which constitutes an

express grant of power. Under Section 31, Book III of

Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the
policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the
Office of the President." For this purpose, he may transfer
the functions of other Departments or Agencies to the Office
of the President. In Canonizado v. Aguirre [323 SCRA 312
(2000)], we ruled that reorganization "involves the reduction
of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes
place when there is an alteration of the existing structure of
government offices or units therein, including the lines of
control, authority and responsibility between them. The EIIB
is a bureau attached to the Department of Finance. It falls
under the Office of the President. Hence, it is subject to the
Presidents continuing authority to reorganize. [Emphasis
Supplied]
In the same vein, the creation of the PTC is not justified by
the Presidents power of control. Control is essentially the
power to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties
and to substitute the judgment of the former with that of the
latter.47 Clearly, the power of control is entirely different from
the power to create public offices. The former is inherent in
the Executive, while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to faithfully
execute the laws.
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public
office?
According to the OSG, the power to create a truth
commission pursuant to the above provision finds statutory
basis under P.D. 1416, as amended by P.D. No. 1772.48 The
said law granted the President the continuing authority to
reorganize the national government, including the power to
group, consolidate bureaus and agencies, to abolish offices,
to transfer functions, to create and classify functions,
services and activities, transfer appropriations, and to
standardize salaries and materials. This decree, in relation to
Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as
a justification for the President to create a public office. Said
decree is already stale, anachronistic and inoperable. P.D.
No. 1416 was a delegation to then President Marcos of the
authority to reorganize the administrative structure of the
national government including the power to create offices
and transfer appropriations pursuant to one of the purposes
of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form
of government will necessitate flexibility in the organization
of the national government.
Clearly, as it was only for the purpose of providing
manageability and resiliency during the interim, P.D. No.
1416, as amended by P.D. No. 1772, became functus oficio
upon the convening of the First Congress, as expressly
provided in Section 6, Article XVIII of the 1987 Constitution.
In fact, even the Solicitor General agrees with this view.
Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was

enacted was the last whereas clause of P.D. 1416 says "it
was enacted to prepare the transition from presidential to
parliamentary. Now, in a parliamentary form of government,
the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416
was issued. Now would you agree with me that P.D. 1416
should not be considered effective anymore upon the
promulgation, adoption, ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.]
1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President
to reorganize the entire National Government is deemed
repealed, at least, upon the adoption of the 1987
Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass
muster on the basis of P.D. No. 1416 as amended by P.D.
No. 1772, the creation of the PTC finds justification under
Section 17, Article VII of the Constitution, imposing upon the
President the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. (Emphasis
supplied).
As correctly pointed out by the respondents, the allocation of
power in the three principal branches of government is a
grant of all powers inherent in them. The Presidents power
to conduct investigations to aid him in ensuring the faithful
execution of laws in this case, fundamental laws on public
accountability and transparency is inherent in the
Presidents powers as the Chief Executive. That the authority
of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in
the Constitution or in statutes does not mean that he is
bereft of such authority.51 As explained in the landmark case
of Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the
presidential system of government and restored the
separation of legislative, executive and judicial powers by
their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive
power" is the power to enforce the laws, for the President is
head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless
the Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the laws is
only one of the powers of the President. It also grants the
President other powers that do not involve the execution of
any provision of law, e.g., his power over the country's
foreign relations.

On these premises, we hold the view that although the 1987

Constitution imposes limitations on the exercise
ofspecific powers of the President, it maintains intact what
is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be
said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more
than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. x x x.
Indeed, the Executive is given much leeway in ensuring that
our laws are faithfully executed. As stated above, the powers
of the President are not limited to those specific powers
under the Constitution.53 One of the recognized powers of
the President granted pursuant to this constitutionallymandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus,
in Department of Health v. Camposano,54 the authority of the
President to issue Administrative Order No. 298, creating an
investigative committee to look into the administrative
charges filed against the employees of the Department of
Health for the anomalous purchase of medicines was
upheld. In said case, it was ruled:
The Chief Executives power to create the Ad hoc
Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive
Department, to which respondents belong, the President has
the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such
validity is not affected by the fact that the investigating team
and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in
conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into
matters which the President is entitled to know so that he
can be properly advised and guided in the performance of
his duties relative to the execution and enforcement of the
laws of the land. And if history is to be revisited, this was
also the objective of the investigative bodies created in the
past like the PCAC, PCAPE, PARGO, the Feliciano
Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government
structure, the Court is not inclined to declare such executive
power as non-existent just because the direction of the
political winds have changed.
On the charge that Executive Order No. 1 transgresses the
power of Congress to appropriate funds for the operation of
a public office, suffice it to say that there will be no
appropriation but only an allotment or allocations of existing
funds already appropriated. Accordingly, there is no
usurpation on the part of the Executive of the power of
Congress to appropriate funds. Further, there is no need to
specify the amount to be earmarked for the operation of the
commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of
the President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be

allocated to the PTC shall be subject to existing auditing

rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The Presidents power to conduct investigations to ensure
that laws are faithfully executed is well recognized. It flows
from the faithful-execution clause of the Constitution under
Article VII, Section 17 thereof.56 As the Chief Executive, the
president represents the government as a whole and sees to
it that all laws are enforced by the officials and employees of
his department. He has the authority to directly assume the
functions of the executive department.57
Invoking this authority, the President constituted the PTC to
primarily investigate reports of graft and corruption and to
recommend the appropriate action. As previously stated, no
quasi-judicial powers have been vested in the said body as it
cannot adjudicate rights of persons who come before it. It
has been said that "Quasi-judicial powers involve the power
to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with
the standards laid down by law itself in enforcing and
administering the same law."58 In simpler terms, judicial
discretion is involved in the exercise of these quasi-judicial
power, such that it is exclusively vested in the judiciary and
must be clearly authorized by the legislature in the case of
administrative agencies.
The distinction between the power to investigate and the
power to adjudicate was delineated by the Court in Cario v.
Commission on Human Rights.59 Thus:
"Investigate," commonly understood, means to examine,
explore, inquire or delve or probe into, research on, study.
The dictionary definition of "investigate" is "to observe or
study closely: inquire into systematically: "to search or
inquire into: x x to subject to an official probe x x: to conduct
an official inquiry." The purpose of investigation, of course, is
to discover, to find out, to learn, obtain information. Nowhere
included or intimated is the notion of settling, deciding or
resolving a controversy involved in the facts inquired into by
application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same:
"(t)o follow up step by step by patient inquiry or observation.
To trace or track; to search into; to examine and inquire into
with care and accuracy; to find out by careful inquisition;
examination; the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation," "investigation" being in
turn described as "(a)n administrative function, the exercise
of which ordinarily does not require a hearing. 2 Am J2d Adm
L Sec. 257; x x an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter
or matters."
"Adjudicate," commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on,
settle. The dictionary defines the term as "to settle finally (the
rights and duties of the parties to a court case) on the merits
of issues raised: x x to pass judgment on: settle judicially: x x
act as judge." And "adjudge" means "to decide or rule upon
as a judge or with judicial or quasi-judicial powers: x x to
award or grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the

exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and
"adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x. Implies a judicial
determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to
the judicial function of a court of justice, or even a quasijudicial agency or office. The function of receiving evidence
and ascertaining therefrom the facts of a controversy is not a
judicial function. To be considered as such, the act of
receiving evidence and arriving at factual conclusions in a
controversy must be accompanied by the authority of
applying the law to the factual conclusions to the end that
the controversy may be decided or resolved authoritatively,
finally and definitively, subject to appeals or modes of review
as may be provided by law.60 Even respondents themselves
admit that the commission is bereft of any quasi-judicial
power.61
Contrary to petitioners apprehension, the PTC will not
supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the
commission will complement those of the two offices. As
pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the
commission to conduct a fact-finding investigation."62 The
actual prosecution of suspected offenders, much less
adjudication on the merits of the charges against them,63 is
certainly not a function given to the commission. The phrase,
"when in the course of its investigation," under Section 2(g),
highlights this fact and gives credence to a contrary
interpretation from that of the petitioners. The function of
determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and
the Ombudsman.64
At any rate, the Ombudsmans power to investigate under
R.A. No. 6770 is not exclusive but is shared with other
similarly authorized government agencies. Thus, in the case
of Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by
the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized
government agencies such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The
power to conduct preliminary investigation on charges
against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite
the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of
the President and the local Sanggunians to investigate
complaints against local elective officials. [Emphasis
supplied].
Also, Executive Order No. 1 cannot contravene the power of
the Ombudsman to investigate criminal cases under Section
15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the

Sandiganbayan and, in the exercise of its primary

jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of
such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated
above contemplates the conduct of a preliminary
investigation or the determination of the existence of
probable cause. This is categorically out of the PTCs sphere
of functions. Its power to investigate is limited to obtaining
facts so that it can advise and guide the President in the
performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC
commits no act of usurpation of the Ombudsmans primordial
duties.
The same holds true with respect to the DOJ. Its authority
under Section 3 (2), Chapter 1, Title III, Book IV in the
Revised Administrative Code is by no means exclusive and,
thus, can be shared with a body likewise tasked to
investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred
that the findings of the PTC are to be accorded
conclusiveness. Much like its predecessors, the Davide
Commission, the Feliciano Commission and the Zenarosa
Commission, its findings would, at best, be recommendatory
in nature. And being so, the Ombudsman and the DOJ have
a wider degree of latitude to decide whether or not to reject
the recommendation. These offices, therefore, are not
deprived of their mandated duties but will instead be aided
by the reports of the PTC for possible indictments for
violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within
the investigative power of the President, the Court finds
difficulty in upholding the constitutionality of Executive Order
No. 1 in view of its apparent transgression of the equal
protection clause enshrined in Section 1, Article III (Bill of
Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is
violative of this constitutional safeguard. They contend that it
does not apply equally to all members of the same class
such that the intent of singling out the "previous
administration" as its sole object makes the PTC an
"adventure in partisan hostility."66 Thus, in order to be
accorded with validity, the commission must also cover
reports of graft and corruption in virtually all administrations
previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the
reported cases of graft and corruption must encompass acts
committed not only during the administration of former
President Arroyo but also during prior administrations where
the "same magnitude of controversies and anomalies"68 were
reported to have been committed against the Filipino people.
They assail the classification formulated by the respondents
as it does not fall under the recognized exceptions because
first, "there is no substantial distinction between the group of

officials targeted for investigation by Executive Order No. 1

and other groups or persons who abused their public office
for personal gain; and second, the selective classification is
not germane to the purpose of Executive Order No. 1 to end
corruption."69 In order to attain constitutional permission, the
petitioners advocate that the commission should deal with
"graft and grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with equal
force."70
Position of respondents
According to respondents, while Executive Order No. 1
identifies the "previous administration" as the initial subject
of the investigation, following Section 17 thereof, the PTC
will not confine itself to cases of large scale graft and
corruption solely during the said administration.71 Assuming
arguendo that the commission would confine its proceedings
to officials of the previous administration, the petitioners
argue that no offense is committed against the equal
protection clause for "the segregation of the transactions of
public officers during the previous administration as possible
subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the
Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the
following:
First. E.O. No. 1 was issued in view of widespread reports of
large scale graft and corruption in the previous
administration which have eroded public confidence in public
institutions. There is, therefore, an urgent call for the
determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence
in the Government and in their public servants.
Second. The segregation of the preceding administration as
the object of fact-finding is warranted by the reality that
unlike with administrations long gone, the current
administration will most likely bear the immediate
consequence of the policies of the previous administration.
Third. The classification of the previous administration as a
separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that
could lead to recovery of public monies illegally dissipated,
the policy lessons to be learned to ensure that anticorruption laws are faithfully executed, are more easily
established in the regime that immediately precede the
current administration.
Fourth. Many administrations subject the transactions of
their predecessors to investigations to provide closure to
issues that are pivotal to national life or even as a routine
measure of due diligence and good housekeeping by a
nascent administration like the Presidential Commission on
Good Government (PCGG), created by the late President
Corazon C. Aquino under Executive Order No. 1 to pursue
the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and the
Saguisag Commission created by former President Joseph
Estrada under Administrative Order No, 53, to form an adhoc and independent citizens committee to investigate all
the facts and circumstances surrounding "Philippine

Centennial projects" of his predecessor, former President

Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was
founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in
a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is the equal
protection clause.74
"According to a long line of decisions, equal protection
simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed."75 It "requires public bodies and
institutions to treat similarly situated individuals in a similar
manner."76 "The purpose of the equal protection clause is to
secure every person within a states jurisdiction against
intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution
through the states duly constituted authorities."77 "In other
words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state
actions, not just those of the legislature.79 Its inhibitions cover
all the departments of the government including the political
and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever
agency or whatever guise is taken. 80
It, however, does not require the universal application of the
laws to all persons or things without distinction. What it
simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification,
however, to be valid must pass the test
ofreasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to
existing conditions only; and
(4) It applies equally to all members of the same
class.81 "Superficial differences do not make for a valid
classification."82
For a classification to meet the requirements of
constitutionality, it must include or embrace all persons who
naturally belong to the class.83 "The classification will be
regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made
with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this
is achieved, all those covered by the classification are to be

treated equally. The mere fact that an individual belonging to

a class differs from the other members, as long as that class
is substantially distinguishable from all others, does not
justify the non-application of the law to him."84
The classification must not be based on existing
circumstances only, or so constituted as to preclude addition
to the number included in the class. It must be of such a
nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out
or "underinclude" those that should otherwise fall into a
certain classification. As elucidated in Victoriano v. Elizalde
Rope Workers' Union85 and reiterated in a long line of
cases,86
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid
discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with
one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of classification
is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter
of constitutionality. All that is required of a valid classification
is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
[Citations omitted]
Applying these precepts to this case, Executive Order No. 1
should be struck down as violative of the equal protection
clause. The clear mandate of the envisioned truth
commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during
the previous administration"87 only. The intent to single out
the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the
questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated
solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during the
previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. There is hereby

created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily
seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees,
their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission,
which shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative
Code of 1987, is primarily tasked to conduct a thorough factfinding investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class
of past administrations. It is not a class of its own. Not to
include past administrations similarly situated constitutes
arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.
Though the OSG enumerates several differences between
the Arroyo administration and other past administrations,
these distinctions are not substantial enough to merit the
restriction of the investigation to the "previous
administration" only. The reports of widespread corruption in
the Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier
administrations which were also blemished by similar
widespread reports of impropriety. They are not inherent in,
and do not inure solely to, the Arroyo administration. As
Justice Isagani Cruz put it, "Superficial differences do not
make for a valid classification."88
The public needs to be enlightened why Executive Order No.
1 chooses to limit the scope of the intended investigation to
the previous administration only. The OSG ventures to opine
that "to include other past administrations, at this point, may
unnecessarily overburden the commission and lead it to lose
its effectiveness."89 The reason given is specious. It is
without doubt irrelevant to the legitimate and noble objective
of the PTC to stamp out or "end corruption and the evil it
breeds."90
The probability that there would be difficulty in unearthing
evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the
point. Obviously, deceased presidents and cases which have
already prescribed can no longer be the subjects of inquiry
by the PTC. Neither is the PTC expected to conduct
simultaneous investigations of previous administrations,
given the bodys limited time and resources. "The law does
not require the impossible" (Lex non cogit ad impossibilia).91

Given the foregoing physical and legal impossibility, the

Court logically recognizes the unfeasibility of investigating
almost a centurys worth of graft cases. However, the fact
remains that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past
administrations. The PTC must, at least, have the authority
to investigate all past administrations. Whilereasonable
prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional. In the often quoted
language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc
body, its scope is limited. The Court, however, is of the
considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the laws
should not in any way be circumvented. The Constitution is
the fundamental and paramount law of the nation to which all
other laws must conform and in accordance with which all
private rights determined and all public authority
administered.93 Laws that do not conform to the Constitution
should be stricken down for being unconstitutional.94 While
the thrust of the PTC is specific, that is, for investigation of
acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the
guise of "substantial distinctions" would only confirm the
petitioners lament that the subject executive order is only an
"adventure in partisan hostility." In the case of US v.
Cyprian,95 it was written: "A rather limited number of such
classifications have routinely been held or assumed to be
arbitrary; those include: race, national origin,
gender, political activity or membership in a political
party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the
requirements of constitutionality, it must include or embrace
all persons who naturally belong to the class.96 "Such a
classification must not be based on existing circumstances
only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to
embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in
situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable
from those of the members of the class must be brought
under the influence of the law and treated by it in the same
way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is
not fatal to the validity of a law under the equal protection
clause."98 "Legislation is not unconstitutional merely because
it is not all-embracing and does not include all the evils
within its reach."99 It has been written that a regulation
challenged under the equal protection clause is not devoid of
a rational predicate simply because it happens to be
incomplete.100 In several instances, the underinclusiveness
was not considered a valid reason to strike down a law or
regulation where the purpose can be attained in future

legislations or regulations. These cases refer to the "step by

step" process.101 "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial
scheme simply because it fails, through inadvertence or
otherwise, to cover every evil that might conceivably have
been attacked."102
In Executive Order No. 1, however, there is no inadvertence.
That the previous administration was picked out was
deliberate and intentional as can be gleaned from the fact
that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1
does not even mention any particular act, event or report to
be focused on unlike the investigative commissions created
in the past. "The equal protection clause is violated by
purposeful and intentional discrimination."103
To disprove petitioners contention that there is deliberate
discrimination, the OSG clarifies that the commission does
not only confine itself to cases of large scale graft and
corruption committed during the previous
administration.104 The OSG points to Section 17 of Executive
Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and
when in the judgment of the President there is a need to
expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and
instances of graft and corruption during the prior
administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the
President the discretion to expand the scope of
investigations of the PTC so as to include the acts of graft
and corruption committed in other past administrations, it
does not guarantee that they would be covered in the future.
Such expanded mandate of the commission will still depend
on the whim and caprice of the President. If he would decide
not to include them, the section would then be meaningless.
This will only fortify the fears of the petitioners that the
Executive Order No. 1 was "crafted to tailor-fit the
prosecution of officials and personalities of the Arroyo
administration."105
The Court tried to seek guidance from the pronouncement in
the case of Virata v. Sandiganbayan,106 that the "PCGG
Charter (composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause." The decision,
however, was devoid of any discussion on how such
conclusory statement was arrived at, the principal issue in
said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is whether or not the Supreme Court, in the exercise of its
constitutionally mandated power of Judicial Review with
respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is
the Highest Tribunal, which is expected to be the protector of
the Constitution, itself guilty of violating fundamental tenets
like the doctrine of separation of powers? Time and again,
this issue has been addressed by the Court, but it seems
that the present political situation calls for it to once again
explain the legal basis of its action lest it continually be

accused of being a hindrance to the nations thrust to

progress.
The Philippine Supreme Court, according to Article VIII,
Section 1 of the 1987 Constitution, is vested with Judicial
Power that "includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave of abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the
power of judicial review which is the power to declare a
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation unconstitutional. This power also includes the duty
to rule on the constitutionality of the application, or operation
of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions,
however, have been fertile grounds of conflict between the
Supreme Court, on one hand, and the two co-equal bodies
of government, on the other. Many times the Court has been
accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would
be a good source of enlightenment, to wit: "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."107
Thus, the Court, in exercising its power of judicial review, is
not imposing its own will upon a co-equal body but rather
simply making sure that any act of government is done in
consonance with the authorities and rights allocated to it by
the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more
authority of proscribing the actions under review. Otherwise,
the Court will not be deterred to pronounce said act as void
and unconstitutional.
It cannot be denied that most government actions are
inspired with noble intentions, all geared towards the
betterment of the nation and its people. But then again, it is
important to remember this ethical principle: "The end does
not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be
employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply
let it pass. It will continue to uphold the Constitution and its
enshrined principles.
"The Constitution must ever remain supreme. All must bow
to the mandate of this law. Expediency must not be allowed
to sap its strength nor greed for power debase its
rectitude."109
Lest it be misunderstood, this is not the death knell for a
truth commission as nobly envisioned by the present
administration. Perhaps a revision of the executive issuance

so as to include the earlier past administrations would allow

it to pass the test of reasonableness and not be an affront to
the Constitution. Of all the branches of the government, it is
the judiciary which is the most interested in knowing the truth
and so it will not allow itself to be a hindrance or obstacle to
its attainment. It must, however, be emphasized that the
search for the truth must be within constitutional bounds for
"ours is still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive
Order No. 1 is hereby declared UNCONSTITUTIONAL
insofar as it is violative of the equal protection clause of the
Constitution.
As also prayed for, the respondents are hereby ordered to
cease and desist from carrying out the provisions of
Executive Order No. 1.
SO ORDERED.

G.R. No. 171396

May 3, 2006

x-------------------------------------x
May 3, 2006

NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING

CO., INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND
HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485

x-------------------------------------x
G.R. No. 171483

PROF. RANDOLF S. DAVID, LORENZO TAADA III,

RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI,
ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL
GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.

G.R. No. 171409

L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO,

JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES,
JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES REPRESENTED BY AMADO GAT
INCIONG,Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V.
PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP
CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP,Respondents.

May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A.

SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV
S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA

May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS

CHAIRPERSON ELMER C. LABOG AND SECRETARY
GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION
OF LABOR UNIONS KILUSANG MAYO UNO (NAFLUKMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M.
TAN,Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGALARROYO, THE HONORABLE EXECUTIVE SECRETARY,
EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400

May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT.
GEN. GENEROSO SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO, Respondents.
G.R. No. 171489

May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,

ROMULO R. RIVERA, JOSE AMOR M. AMORADO,
ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III,
MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES
(IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA,
GENERAL GENEROSO SENGA, IN HIS CAPACITY AS
AFP CHIEF OF STAFF, AND DIRECTOR GENERAL
ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,Respondents.
x-------------------------------------x

G.R. No. 171424

May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS
PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL
OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES
(AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather
than rigid formula are necessary.1 Superior strength the
use of force cannot make wrongs into rights. In this regard,
the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is
thus most relevant. He said: "In cases involving liberty, the
scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts
"with a heavy presumption against their constitutional
validity."2
These seven (7) consolidated petitions for certiorari and
prohibition allege that in issuing Presidential Proclamation
No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse
of discretion. Petitioners contend that respondent officials of
the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon
the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but
persistently modern problem. How does the Constitution of a
free people combine the degree of liberty, without which,
law becomes tyranny, with the degree of law, without which,
liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th
Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency,
thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President
of the Republic of the Philippines and Commander-in-Chief
of the Armed Forces of the Philippines, by virtue of the
powers vested upon me by Section 18, Article 7 of the
Philippine Constitution which states that: "The President. . .
whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . .," and in
my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well

as any act of insurrection or rebellion and to enforce

obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in
the political opposition have conspired with
authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by
military adventurists the historical enemies of the
democratic Philippine State who are now in a tactical
alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to
bring down the President;
WHEREAS, the claims of these elements have been
recklessly magnified by certain segments of the national
media;
WHEREAS, this series of actions is hurting the Philippine
State by obstructing governance including hindering the
growth of the economy and sabotaging the peoples
confidence in government and their faith in the future of
this country;
WHEREAS, these actions are adversely affecting the
economy;
WHEREAS, these activities give totalitarian forces of
both the extreme Left and extreme Right the opening to
intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution
makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their
consequences, ramifications and collateral effects constitute
aclear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5
implementing PP 1017, thus:
WHEREAS, over these past months, elements in the
political opposition have conspired with authoritarians of the
extreme Left, represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and
who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to
bring down the duly-constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to
bring down our republican government;

WHEREAS, the claims of these elements have been

recklessly magnified by certain segments of the national
media;

WHEREAS, the AFP and PNP have effectively prevented,

suppressed and quelled the acts lawless violence and
rebellion;

WHEREAS, these series of actions is hurting the Philippine

State by obstructing governance, including hindering the
growth of the economy and sabotaging the peoples
confidence in the government and their faith in the future of
this country;

NOW, THEREFORE, I, GLORIA MACAPAGALARROYO, President of the Republic of the Philippines, by

virtue of the powers vested in me by law, hereby declare
that the state of national emergency has ceased to exist.

WHEREAS, these actions are adversely affecting the

economy;
WHEREAS, these activities give totalitarian forces; of both
the extreme Left and extreme Right the opening to intensify
their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of our Constitution makes
the defense and preservation of the democratic institutions
and the State the primary duty of Government;
WHEREAS, the activities above-described, their
consequences, ramifications and collateral effects constitute
a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has
been issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGALARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines,
and Commander-in-Chief of the Republic of the Philippines,
and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP),
to prevent and suppress acts of terrorism and lawless
violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of
the PNP, as well as the officers and men of the AFP and
PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of
a state of national emergency and after all these petitions
had been filed, the President lifted PP 1017. She issued
Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section
17, Article XII of the Constitution, Proclamation No. 1017
dated February 24, 2006, was issued declaring a state of
national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated
February 24, 2006, which were issued on the basis of
Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake
such action as may be necessary;

In their presentation of the factual bases of PP 1017 and

G.O. No. 5, respondents stated that the proximate cause
behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New Peoples
Army (NPA), and some members of the political opposition in
a plot to unseat or assassinate President Arroyo.4 They
considered the aim to oust or assassinate the President and
take-over the reigns of government as a clear and present
danger.
During the oral arguments held on March 7, 2006, the
Solicitor General specified the facts leading to the issuance
of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners counsels.
The Solicitor General argued that the intent of the
Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the
armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he
explained that it is not respondents task to state the facts
behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation
of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and
Patricio Bumidang, members of the Magdalo Group indicted
in the Oakwood mutiny, escaped their detention cell in Fort
Bonifacio, Taguig City. In a public statement, they vowed to
remain defiant and to elude arrest at all costs. They called
upon the people to "show and proclaim our displeasure at
the sham regime. Let us demonstrate our disgust, not only
by going to the streets in protest, but also by wearing red
bands on our left arms." 5
On February 17, 2006, the authorities got hold of a
document entitled "Oplan Hackle I " which detailed plans for
bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet
members and President Arroyo herself.6 Upon the advice of
her security, President Arroyo decided not to attend the
Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a
communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of
the meetings between members of the Magdalo Group and
the National Peoples Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive
documents.7 Prior to his arrest, Lt. San Juan announced
through DZRH that the "Magdalos D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao

intercepted information that members of the PNP- Special
Action Force were planning to defect. Thus, he immediately
ordered SAF Commanding General Marcelino Franco, Jr.
to "disavow" any defection. The latter promptly obeyed and
issued a public statement: "All SAF units are under the
effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman
Peping Cojuangco, President Cory Aquinos brother,
businessmen and mid-level government officials plotted
moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about
his groups plans if President Arroyo is ousted. Saycon also
phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Armys elite Scout
Ranger. Lim said "it was all systems go for the planned
movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel
Querubin confided to Gen. Generoso Senga, Chief of Staff
of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to
be held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President.
However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He
immediately took custody of B/Gen. Lim and directed Col.
Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police
establishments in order to forge alliances with its members
and key officials. NPA spokesman Gregorio "Ka Roger"
Rosal declared: "The Communist Party and revolutionary
movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to
end it."9
On the other hand, Cesar Renerio, spokesman for the
National Democratic Front (NDF) at North Central Mindanao,
publicly announced: "Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and
enlisted personnel who undertake counter-insurgency
operations in the field." He claimed that with the forces of the
national democratic movement, the anti-Arroyo conservative
political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first
half of 2006.
Respondents further claimed that the bombing of
telecommunication towers and cell sites in Bulacan and
Bataan was also considered as additional factual basis for
the issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of
the Philippines ordering its front organizations to join 5,000

Metro Manila radicals and 25,000 more from the provinces in

mass protests.10
By midnight of February 23, 2006, the President convened
her security advisers and several cabinet members to
assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account
for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students
from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the
entire National Capital Region.
For their part, petitioners cited the events that followed
after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the
cancellation of all programs and activities related to the 20th
anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that
political rallies, which to the Presidents mind were organized
for purposes of destabilization, are cancelled.Presidential
Chief of Staff Michael Defensor announced that "warrantless
arrests and take-over of facilities, including media, can
already be implemented."11
Undeterred by the announcements that rallies and public
assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLUKMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were
already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear
gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon
City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an
EDSA celebration rally held along Ayala Avenue and Paseo
de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited
PP 1017 as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police
arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas,
president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group
(CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures,
and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the
Manila Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily
Tribune offices, the police surrounded the premises of

another pro-opposition paper, Malaya, and its sister

publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael
Defensor, is "meant to show a strong presence, to tell
media outlets not to connive or do anything that would help
the rebels in bringing down this government." The PNP
warned that it would take over any media organization that
would not follow "standards set by the government during
the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards and the
standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a
takeover." National Telecommunications Commissioner
Ronald Solis urged television and radio networks
to "cooperate" with the government for the duration of the
state of national emergency. He asked for "balanced
reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for
media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested
Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The
police showed a warrant for his arrest dated 1985. Beltrans
lawyer explained that the warrant, which stemmed from a
case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in
any of these petitions.
When members of petitioner KMU went to Camp Crame to
visit Beltran, they were told they could not be admitted
because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the
police.
Bayan Muna Representative Satur Ocampo eluded arrest
when the police went after him during a public forum at the
Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in
Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative
Satur Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casio and Gabriela
Representative Liza Maza. Bayan Muna Representative
Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House
of Representatives where the "Batasan 5" decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of
the rights of Representatives Beltran, Satur Ocampo,et al.,
are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021
declaring that the state of national emergency has ceased to
exist.

In the interim, these seven (7) petitions challenging the

constitutionality of PP 1017 and G.O. No. 5 were filed with
this Court against the above-named respondents. Three (3)
of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al.
assailed PP 1017 on the grounds that (1) it encroaches on
the emergency powers of Congress; (2) itis a subterfuge to
avoid the constitutional requirements for the imposition of
martial law; and (3) it violates the constitutional guarantees
of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDGs act
of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the
term "emergency" refers only to tsunami, typhoon, hurricane
and similar occurrences, hence, there is "absolutely no
emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative
Francis Joseph G. Escudero, and twenty one (21) other
members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro
Casio, Liza Maza, and Josel Virador. They asserted that PP
1017 and G.O. No. 5 constitute "usurpation of legislative
powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President
Arroyo "gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the
possibility of lawless violence and a showing that there is
necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their
members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc.
(ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 415 of
Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c)Section
2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et
al., alleged that PP 1017 is an "arbitrary and unlawful
exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial
Law, petitioners argued that "it amounts to an exercise by
the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017
"goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda
maintained that PP 1017 and G.O. No. 5 are
"unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of
the press and the right to access to information on matters
of public concern, all guaranteed under Article III, Section 4
of the 1987 Constitution." In this regard, she stated that

these issuances prevented her from fully prosecuting her

election protest pending before the Presidential Electoral
Tribunal.

the Constitution. This power the courts exercise. This is

the beginning and the end of the theory of judicial
review.22

In respondents Consolidated Comment, the Solicitor

General countered that: first, the petitions should be
dismissed for being moot; second,petitioners in G.R. Nos.
171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.),
171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to
implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does
not violate the peoples right to free expression and redress
of grievances.

But the power of judicial review does not repose upon the
courts a "self-starting capacity."23 Courts may exercise such
power only when the following requisites are
present: first, there must be an actual case or
controversy;second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of
the constitutional question must be necessary to the
determination of the case itself.24

On March 7, 2006, the Court conducted oral arguments and

heard the parties on the above interlocking issues which
may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the
petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et
al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489(Cadiz et al.), and 171424 (Legarda)
have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the
factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are
unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

Respondents maintain that the first and second requisites

are absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal
right, an opposite legal claims susceptible of judicial
resolution. It is "definite and concrete, touching the legal
relations of parties having adverse legal interest;" a real and
substantial controversy admitting of specific relief.25 The
Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were
rendered "moot and academic" by President Arroyos
issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events,26 so
that a declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such
case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyos issuance of PP 1021
did not render the present petitions moot and academic.
During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal
acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30

A. PROCEDURAL

One of the greatest contributions of the American system to

this country is the concept of judicial review enunciated
in Marbury v. Madison.21 This concept rests on the
extraordinary simple foundation --

The "moot and academic" principle is not a magical formula

that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the
Constitution;31 second, the exceptional character of the
situation and the paramount public interest is
involved;32third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the
bar, and the public;33 and fourth, the case is capable of
repetition yet evading review.34

The Constitution is the supreme law. It was ordained by the

people, the ultimate source of all political authority. It confers
limited powers on the national government. x x x If the
government consciously or unconsciously oversteps
these limitations there must be some authority
competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in

All the foregoing exceptions are present here and justify this
Courts assumption of jurisdiction over the instant petitions.
Petitioners alleged that the issuance of PP 1017 and G.O.
No. 5 violates the Constitution. There is no question that the
issues being raised affect the publics interest, involving as
they do the peoples basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty
to formulate guiding and controlling constitutional precepts,

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

doctrines or rules. It has the symbolic function of educating

the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection
given by constitutional guarantees.35 And lastly, respondents
contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case,
respondents cited Chief Justice Artemio V. Panganibans
Separate Opinion in Sanlakas v. Executive
Secretary.36 However, they failed to take into account the
Chief Justices very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper
case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present
case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various
personalities, the Court deems it imperative to have a more
than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court
of justice on a given question."37 In private suits, standing is
governed by the "real-parties-in interest" rule as contained in
Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be
prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of
the suit."38 Succinctly put, the plaintiffs standing is based on
his own right to the relief sought.
The difficulty of determining locus standi arises in public
suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person
who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a
"citizen," or taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first
laid down in Beauchamp v. Silk,39 where it was held that the
plaintiff in a taxpayers suit is in a different category from the
plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People
ex rel Case v. Collins:40 "In matter of mere public right,
howeverthe people are the real partiesIt is at least
the right, if not the duty, of every citizen to interfere and
see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With
respect to taxpayers suits, Terr v. Jordan41 held that "the
right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his
injury cannot be denied."

However, to prevent just about any person from seeking

judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the
United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt,42 later reaffirmed
inTileston v. Ullman.43 The same Court ruled that for a
private individual to invoke the judicial power to determine
the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the "direct injury" test in our
jurisdiction. In People v. Vera,44 it held that the person who
impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has
sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race
Horse Trainers Association v. De la Fuente,46Pascual v.
Secretary of Public Works47 and Anti-Chinese League of the
Philippines v. Felix.48
However, being a mere procedural technicality, the
requirement of locus standi may be waived by the Court in
the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,49 where
the "transcendental importance" of the cases prompted
the Court to act liberally. Such liberality was neither a rarity
nor accidental. In Aquino v. Comelec,50 this Court resolved to
pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the
suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws,
regulations and rulings.51
Thus, the Court has adopted a rule that even where the
petitioners have failed to show direct injury, they have been
allowed to sue under the principle of "transcendental
importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the
Court ruled that the enforcement of the
constitutional right to information and the
equitable diffusion of natural resources are
matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v.
Zamora,53 wherein the Court held that "given the
transcendental importance of the issues
involved, the Court may relax the standing
requirements and allow the suit to prosper
despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary,54 while the Court
noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that
"Balikatan 02-01" involves the exercise of
Congress taxing or spending powers, it reiterated
its ruling in Bagong Alyansang Makabayan v.

Zamora,55that in cases of transcendental

importance, the cases must be settled
promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from
the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are
met:

Now, the application of the above principles to the present

petitions.
The locus standi of petitioners in G.R. No. 171396,
particularly David and Llamas, is beyond doubt. The same
holds true with petitioners in G.R. No. 171409, CachoOlivares and Tribune Publishing Co. Inc. They alleged "direct
injury" resulting from "illegal arrest" and "unlawful search"
committed by police operatives pursuant to PP 1017. Rightly
so, the Solicitor General does not question their legal
standing.

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax
measure is unconstitutional;
(3) for voters, there must be a showing of obvious
interest in the validity of the election law in
question;
(4) for concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be settled
early; and
(5) for legislators, there must be a claim that the
official action complained of infringes upon their
prerogatives as legislators.
Significantly, recent decisions show a certain toughening in
the Courts attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a peoples organization does not give it the
requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer
absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege
any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Comelec,57 the Court reiterated the "direct
injury" test with respect to concerned citizens cases
involving constitutional issues. It held that "there must be a
showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a
real party-in-interest as it had not demonstrated any injury to
itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that
only the petitioners who are members of Congress have
standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP
in Lacson.

In G.R. No. 171485, the opposition Congressmen alleged

there was usurpation of legislative powers. They also raised
the issue of whether or not the concurrence of Congress is
necessary whenever the alarming powers incident to Martial
Law are used. Moreover, it is in the interest of justice that
those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the
alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality
rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines,
Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine
Amusement and Gaming Corporation,63 and Taada v.
Tuvera,64 that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O.
No. 5 violated its right to peaceful assembly may be deemed
sufficient to give it legal standing. Organizations may be
granted standing to assert the rights of their
members.65 We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling
all permits for public assemblies following the issuance of PP
1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are
national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,66 the Court held that the mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares
that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a
taxpayer to file the instant petition as there are no allegations
of illegal disbursement of public funds. The fact that she is a
former Senator is of no consequence. She can no longer sue
as a legislator on the allegation that her prerogatives as a
lawmaker have been impaired by PP 1017 and G.O. No. 5.
Her claim that she is a media personality will not likewise aid
her because there was no showing that the enforcement of
these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral
protest before the Presidential Electoral Tribunal is likewise
of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But

considering once more the transcendental importance of the

issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus
standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet
of the "liberality doctrine" on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call
for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus
standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during
his tenure of office or actual incumbency,67 may not be sued
in any civil or criminal case, and there is no need to provide
for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully
attend to the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs
his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government.
However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains
accountable to the people68 but he may be removed from
office only in the mode provided by law and that is by
impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis.
Hence, it was not "necessary" for President Arroyo to issue
such Proclamation.
The issue of whether the Court may review the factual bases
of the Presidents exercise of his Commander-in-Chief power
has reached its distilled point - from the indulgent days
of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the
volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and
Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across
the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the
government."75Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an
exigency has arisen belongs to the President and his
decision is final and conclusive on the
courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that
the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it

shifted the focus to the system of checks and balances,

"under which the President is supreme, x x x
only if and when he acts within the sphere allotted to
him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court
ofLansang was divided in Aquino v. Enrile.77 There, the Court
was almost evenly divided on the issue of whether the
validity of the imposition of Martial Law is a political or
justiciable question.78 Then came Garcia-Padilla v.
Enrilewhich greatly diluted Lansang. It declared that there is
a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must
be given absolute control for the very life of the nation
and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the
People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent
case most pertinent to these cases at bar -- echoed a
principle similar to Lansang. While the Court considered the
Presidents "calling-out" power as a discretionary power
solely vested in his wisdom, it stressed that "this does not
prevent an examination of whether such power was
exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave
abuse of discretion."This ruling is mainly a result of the
Courts reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the
courts are authorized not only "to settle actual controversies
involving rights which are legally demandable and
enforceable," but also "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." The latter part of the
authority represents a broadening of judicial power to enable
the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of
the government.81 It speaks of judicial prerogative not only in
terms of power but also of duty.82
As to how the Court may inquire into the Presidents exercise
of power, Lansang adopted the test that "judicial inquiry
can go no further than to satisfy the Court not that the
Presidents decision is correct," but that "the President did
not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the
Philippines, this Court further ruled that "it is incumbent
upon the petitioner to show that the Presidents decision
is totally bereft of factual basis" and that if he fails, by way
of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyos exercise of
the calling-out power, by issuing PP 1017, is totally bereft of
factual basis. A reading of the Solicitor Generals
Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017,
with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There
was also the Minutes of the Intelligence Report and Security

Group of the Philippine Army showing the growing alliance

between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was
justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President
Arroyo was not expected to simply fold her arms and do
nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of
the President in times of emergency. A glimpse at the
various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government,
called upon the English doctrine of prerogative to cope with
the problem of emergency. In times of danger to the nation,
positive law enacted by the legislature might be inadequate
or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the
Crown retained a prerogative "power to act according to
discretion for the public good, without the proscription
of the law and sometimes even against it."84 But Locke
recognized that this moral restraint might not suffice to avoid
abuse of prerogative powers. Who shall judge the need for
resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting
that"the people have no other remedy in this, as in all
other cases where they have no judge on earth, but to
appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for
temporary suspension of democratic processes of
government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from
adopting themselves to circumstances, may, in certain
cases, render them disastrous and make them bring about,
at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as
strong as to render it impossible to suspend their operation.
Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws
are an obstacle to their preservation, the method is to
nominate a supreme lawyer, who shall silence all the laws
and suspend for a moment the sovereign authority. In such a
case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not
perish.86
Rosseau did not fear the abuse of the emergency
dictatorship or "supreme magistracy" as he termed it. For
him, it would more likely be cheapened by "indiscreet use."
He was unwilling to rely upon an "appeal to heaven."
Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of

representative government: "I am far from condemning, in
cases of extreme necessity, the assumption of absolute
power in the form of a temporary dictatorship."88
Nicollo Machiavellis view of emergency powers, as one
element in the whole scheme of limited government,
furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary
to resort to extra constitutional measures; for although they
may for a time be beneficial, yet the precedent is pernicious,
for if the practice is once established for good objects, they
will in a little while be disregarded under that pretext but for
evil purposes. Thus, no republic will ever be perfect if she
has not by law provided for everything, having a remedy for
every emergency and fixed rules for applying it.89
Machiavelli in contrast to Locke, Rosseau and Mill
sought to incorporate into the constitution a regularized
system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional
restraints.90
Contemporary political theorists, addressing themselves to
the problem of response to emergency by constitutional
democracies, have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw "no reason why
absolutism should not be used as a means for the
defense of liberal institutions," provided it "serves to
protect established institutions from the danger of
permanent injury in a period of temporary emergency
and is followed by a prompt return to the previous forms
of political life."92 He recognized the two (2) key elements
of the problem of emergency governance, as well as all
constitutional governance: increasing administrative
powers of the executive, while at the same
time "imposing limitation upon that power."93 Watkins
placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be
relatively shortDictatorship should always be strictly
legitimate in characterFinal authority to determine the
need for dictatorship in any given case must never rest
with the dictator himself"94 and the objective of such an
emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.95 "It is a problem of concentrating power in a
government where power has consciously been divided to
cope with situations of unprecedented magnitude and
gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end."96 Friedrich,
too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means
i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency
powers should be exercised under a strict time

limitation; and last, the objective of emergency action

must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the
employment of emergency powers in Great Britain, France,
Weimar, Germany and the United States, reverted to a
description of a scheme of "constitutional dictatorship" as
solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a
priori the conditions of success of the "constitutional
dictatorship," thus:
1) No general regime or particular institution of
constitutional dictatorship should be initiated
unless it is necessary or even indispensable to the
preservation of the State and its constitutional
order
2) the decision to institute a constitutional
dictatorship should never be in the hands of the
man or men who will constitute the dictator
3) No government should initiate a constitutional
dictatorship without making specific provisions for
its termination
4) all uses of emergency powers and all
readjustments in the organization of the
government should be effected in pursuit of
constitutional or legal requirements
5) no dictatorial institution should be adopted,
no right invaded, no regular procedure altered any
more than is absolutely necessary for the
conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the
a constitutional dictatorship should never be
permanent in character or effect
7) The dictatorship should be carried on by
persons representative of every part of the
citizenry interested in the defense of the existing
constitutional order. . .
8) Ultimate responsibility should be maintained for
every action taken under a constitutional
dictatorship. . .
9) The decision to terminate a constitutional
dictatorship, like the decision to institute one
should never be in the hands of the man or men
who constitute the dictator. . .
10) No constitutional dictatorship should extend
beyond the termination of the crisis for which it
was instituted
11) the termination of the crisis must be followed
by a complete return as possible to the political
and governmental conditions existing prior to the
initiation of the constitutional dictatorship99

Rossiter accorded to legislature a far greater role in the

oversight exercise of emergency powers than did Watkins.
He would secure to Congress final responsibility for
declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional
investigating committees.100
Scott and Cotter, in analyzing the above contemporary
theories in light of recent experience, were one in saying
that, "the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort
the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as
applied to authoritarian rulers) or is employed to embrace all
chief executives administering emergency powers. However
used, "constitutional dictatorship" cannot be divorced from
the implication of suspension of the processes of
constitutionalism. Thus, they favored instead the "concept of
constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is
consistent with the findings of this study, is that formulated
by Charles H. McIlwain. While it does not by any means
necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate
power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper
test of constitutionalism was the existence of adequate
processes for keeping government responsible. He
refused to equate constitutionalism with the enfeebling of
government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power.
He found that the really effective checks on despotism have
consisted not in the weakening of government but, but rather
in the limiting of it; between which there is a great and very
significant difference. In associating constitutionalism
with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the
orderly procedure of law as opposed to the processes of
force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet
fight are the legal limits to arbitrary power and a
complete political responsibility of government to the
governed.101
In the final analysis, the various approaches to emergency of
the above political theorists - from Locks "theory of
prerogative," to Watkins doctrine of "constitutional
dictatorship" and, eventually, to McIlwains "principle of
constitutionalism" --- ultimately aim to solve one real problem
in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive,
while insuring that such powers will be exercised with a
sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh
from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice
Jacksons "balanced power structure."102 Executive,
legislative, and judicial powers are dispersed to the

President, the Congress, and the Supreme Court,

respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency.
Each branch is given a role to serve as limitation or
check upon the other. This system does not weaken the
President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate
within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because
of its "overbreadth." They claim that its enforcement
encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a "chilling
effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is
uncalled for.
First and foremost, the overbreadth doctrine is an analytical
tool developed for testing "on their faces" statutes infree
speech cases, also known under the American Law as First
Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily
directed to speech or even speech-related conduct. It is
actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US
Supreme Court held that "we have not recognized an
overbreadth doctrine outside the limited context of the
First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for
testing the validity of a law that "reflects legitimate state
interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless
violence, insurrection and rebellion are considered "harmful"
and "constitutionally unprotected conduct." InBroadrick v.
Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a
law may properly be held void on its face and when such
summary action is inappropriate. But the plain import of
our cases is, at the very least, that facial overbreadth
adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from pure speech
toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws
that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases
involving statutes which, by their terms, seek to regulate
only "spoken words" and again, that "overbreadth claims,
if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible
fact remains that PP 1017 pertains to a spectrum

of conduct, not free speech, which is manifestly subject to

state regulation.
Second, facial invalidation of laws is considered as
"manifestly strong medicine," to be used "sparingly and
only as a last resort," and is "generally disfavored;"107 The
reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be
applied unconstitutionally to others, i.e., in other situations
not before the Court.108 A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth
technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper
applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests.
In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court
assumes that an overbroad laws "very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth
doctrine will require the Court to examine PP 1017 and
pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the
Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes,...ordinarily
results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might
be decided.
And third, a facial challenge on the ground of overbreadth is
the most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did
not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for

vagueness doctrine" which holds that "a law is facially
invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application."110 It
is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on
their faces" statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to
show that PP 1017 is vague in all its application. They
also failed to establish that men of common intelligence
cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three
important provisions, thus:

suspension for a period to be determined by the Congress, if

the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four
hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
bases of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ.

First provision:
"by virtue of the power vested upon me by Section 18, Artilce
VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence
as well any act of insurrection or rebellion"

The suspension of the privilege of the writ shall apply only to

persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion.
During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.

Second provision:
"and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or
upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do
hereby declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out
power. In Sanlakas v. Executive Secretary,111 this Court,
through Mr. Justice Dante O. Tinga, held that Section 18,
Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of
all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or

grants the President, as Commander-in-Chief, a "sequence"

of graduated powers. From the most to the least benign,
these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to
declare Martial Law. Citing Integrated Bar of the Philippines
v. Zamora,112 the Court ruled that the only criterion for the
exercise of the calling-out power is that "whenever it
becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion
or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then
prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Offices vast intelligence network, she is
in the best position to determine the actual condition of the
country.
Under the calling-out power, the President may summon the
armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police action.
But every act that goes beyond the Presidents calling-out
power is considered illegal or ultra vires. For this reason, a
President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under
a lesser power. There lies the wisdom of our Constitution,
the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction
between the Presidents authority to declare a "state of
rebellion" (in Sanlakas) and the authority to proclaim a state
of national emergency. While President Arroyos authority to
declare a "state of rebellion" emanates from her powers as
Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a

date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of
an executive order.
President Arroyos declaration of a "state of rebellion" was
merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words ofSanlakas, is
harmless, without legal significance, and deemed not written.
In these cases, PP 1017 is more than that. In declaring a
state of national emergency, President Arroyo did not only
rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence,
invasion or rebellion. She also relied on Section 17, Article
XII, a provision on the States extraordinary power to take
over privately-owned public utility and business affected with
public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot
be deemed harmless, without legal significance, or not
written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is
actually a declaration of Martial Law. It is no so. What
defines the character of PP 1017 are its wordings. It is plain
therein that what the President invoked was her calling-out
power.
The declaration of Martial Law is a "warn[ing] to citizens that
the military power has been called upon by the executive to
assist in the maintenance of law and order, and that, while
the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way
render more difficult the restoration of order and the
enforcement of law."113
In his "Statement before the Senate Committee on Justice"
on March 13, 2006, Mr. Justice Vicente V. Mendoza,114an
authority in constitutional law, said that of the three powers
of the President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted
to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm
and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a
declaration of Martial Law. It is no more than a call by the
President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope,
and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests

and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees,
are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration
of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is
not a declaration of Martial Law. It is merely an exercise of
President Arroyos calling-out power for the armed forces
to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President
to ensure that the laws be faithfully executed. This is based
on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
As the Executive in whom the executive power is
vested,115 the primary function of the President is to enforce
the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the
effect that as President of the Philippines, he will, among
others, "execute its laws."116 In the exercise of such function,
the President, if needed, may employ the powers attached to
his office as the Commander-in-Chief of all the armed forces
of the country,117 including the Philippine National
Police118 under the Department of Interior and Local
Government.119
Petitioners, especially Representatives Francis Joseph G.
Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio,
Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact
laws in Congress. They assail the clause "to enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction."
\
Petitioners contention is understandable. A reading of PP
1017 operative clause shows that it was lifted120 from Former
President Marcos Proclamation No. 1081, which partly
reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines by virtue of the powers vested
upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion

and to enforce obedience to all the laws and decrees,

orders and regulations promulgated by me personally or
upon my direction.
We all know that it was PP 1081 which granted President
Marcos legislative power. Its enabling clause states: "to
enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon
my direction." Upon the other hand, the enabling clause of
PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction."
Is it within the domain of President Arroyo to promulgate
"decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon
my direction."
The President is granted an Ordinance Power under Chapter
2, Book III of Executive Order No. 292 (Administrative Code
of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing
for rules of a general or permanent character in
implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.

category and binding force as statutes because they were

issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973
Constitution.121
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo
the authority to promulgate "decrees." Legislative power
is peculiarly within the province of the Legislature. Section 1,
Article VI categorically states that "[t]he legislative power
shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify
President Arroyos exercise of legislative power by issuing
decrees.
Can President Arroyo enforce obedience to all decrees and
laws through the military?
As this Court stated earlier, President Arroyo has no
authority to enact decrees. It follows that these decrees are
void and, therefore, cannot be enforced. With respect to
"laws," she cannot call the military to enforce or implement
certain laws, such as customs laws, laws governing family
and property relations, laws on obligations and contracts and
the like. She can only order the military, under PP 1017, to
enforce laws pertinent to its duty to suppress lawless
violence.
Third Provision: Power to Take Over

Sec. 3. Administrative Orders. Acts of the President which

relate to particular aspect of governmental operations in
pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date
or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of
an executive order.
Sec. 5. Memorandum Orders. Acts of the President on
matters of administrative detail or of subordinate or
temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum
orders.
Sec. 6. Memorandum Circulars. Acts of the President on
matters relating to internal administration, which the
President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of
the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines shall be issued as general
or special orders.
President Arroyos ordinance power is limited to the
foregoing issuances. She cannot issue decrees similar to
those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all
decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
The import of this provision is that President Arroyo, during
the state of national emergency under PP 1017, can call the
military not only to enforce obedience "to all the laws and to
all decrees x x x" but also to act pursuant to the provision of
Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public
interest so requires, the State may, during the emergency
and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately-owned
public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the
above provision when she issued PP 1017?
The answer is simple. During the existence of the state of
national emergency, PP 1017 purports to grant the
President, without any authority or delegation from
Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public
interest.
This provision was first introduced in the 1973 Constitution,
as a product of the "martial law" thinking of the 1971

Constitutional Convention.122 In effect at the time of its

approval was President Marcos Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of
National Defense to take over "the management, control and
operation of the Manila Electric Company, the Philippine
Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas
Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the
present national emergency."
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyos inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the
legislatures emergency powers.

which relate to the same subject matter will be construed

together and considered in the light of each
other.123 Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency
powers. This is evident in the tenor of Section 23 (2), Article
VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain
conditions, thus:

This is an area that needs delineation.

(1) There must be a war or other emergency.
A distinction must be drawn between the Presidents
authority to declare "a state of national emergency" and
toexercise emergency powers. To the first, as elucidated by
the Court, Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of
war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon
the next adjournment thereof.
It may be pointed out that the second paragraph of the
above provision refers not only to war but also to "other
national emergency." If the intention of the Framers of our
Constitution was to withhold from the President the authority
to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of
war), then the Framers could have provided so. Clearly, they
did not intend that Congress should first authorize the
President before he can declare a "state of national
emergency." The logical conclusion then is that President
Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional
enactment.
But the exercise of emergency powers, such as the taking
over of privately owned public utility or business affected with
public interest, is a different matter. This requires a
delegation from Congress.
Courts have often said that constitutional provisions in pari
materia are to be construed together. Otherwise stated,
different clauses, sections, and provisions of a constitution

(2) The delegation must be for a limited period

only.
(3) The delegation must be subject to such
restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised
to carry out a national policy declared by
Congress.124
Section 17, Article XII must be understood as an aspect of
the emergency powers clause. The taking over of private
business affected with public interest is just another facet of
the emergency powers generally reposed upon Congress.
Thus, when Section 17 states that the "the State may,
during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or
business affected with public interest," it refers to
Congress, not the President. Now, whether or not the
President may exercise such power is dependent on
whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet
& Tube Co. et al. v. Sawyer,125held:
It is clear that if the President had authority to issue the order
he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention
is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;"
that "he shall take Care that the Laws be faithfully executed;"
and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the
Presidents military power as Commander-in-Chief of the
Armed Forces. The Government attempts to do so by citing
a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here.Even though
"theater of war" be an expanding concept, we cannot
with faithfulness to our constitutional system hold that
the Commander-in-Chief of the Armed Forces has the

ultimate power as such to take possession of private

property in order to keep labor disputes from stopping
production. This is a job for the nations lawmakers, not
for its military authorities.
Nor can the seizure order be sustained because of the
several constitutional provisions that grant executive
power to the President. In the framework of our
Constitution, the Presidents power to see that the laws
are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he
thinks wise and the vetoing of laws he thinks bad. And
the Constitution is neither silent nor equivocal about
who shall make laws which the President is to execute.
The first section of the first article says that "All
legislative Powers herein granted shall be vested in a
Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term
"emergency" under Section 17, Article XII refers to
"tsunami," "typhoon," "hurricane"and"similar
occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of
conditions suddenly intensifying the degree of existing
danger to life or well-being beyond that which is accepted as
normal. Implicit in this definitions are the elements of
intensity, variety, and perception.127 Emergencies, as
perceived by legislature or executive in the United Sates
since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal
heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the
same breadth. It may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect.131 This is
evident in the Records of the Constitutional Commission,
thus:
MR. GASCON. Yes. What is the Committees definition of
"national emergency" which appears in Section 13, page 5?
It reads:
When the common good so requires, the State may
temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external
aggression, for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los
Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by
the term "national emergency."
MR. BENGZON. Unless they are of such proportions such
that they would paralyze government service.132
xxxxxx

MR. TINGSON. May I ask the committee if "national

emergency" refers to military national emergency or could
this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or
economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency,
Congress may not be able to convene and, therefore, unable
to delegate to the President the power to take over privatelyowned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that
legislative power, through which extraordinary measures are
exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its
faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious.
Never in the history of the United States, the basic features
of whose Constitution have been copied in ours, have
specific functions of the legislative branch of enacting laws
been surrendered to another department unless we regard
as legislating the carrying out of a legislative policy
according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is
that under our concept of constitutional government, in times
of extreme perils more than in normal circumstances the
various branches, executive, legislative, and judicial, given
the ability to act, are called upon to perform the duties and
discharge the responsibilities committed to them
respectively."
Following our interpretation of Section 17, Article XII, invoked
by President Arroyo in issuing PP 1017, this Court rules that
such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of
any privately owned public utility or business affected with
public interest without authority from Congress.
Let it be emphasized that while the President alone can
declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances
exist warranting the take over of privately-owned public utility
or business affected with public interest. Nor can he
determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no
power to point out the types of businesses affected with
public interest that should be taken over. In short, the
President has no absolute authority to exercise all the

powers of the State under Section 17, Article VII in the

absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that
which pertains to security, is that military necessity and the
guaranteed rights of the individual are often not compatible.
Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech,
of expression, of the press, and of assembly under the
Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged
that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited
PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February
25, 2006, the CIDG operatives "raided and ransacked
without warrant" their office. Three policemen were assigned
to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLUKMU et al. alleged that their members were "turned away
and dispersed" when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power
I.
A perusal of the "direct injuries" allegedly suffered by the
said petitioners shows that they resulted from
theimplementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and
G.O. No 5 on the basis of these illegal acts? In general,does
the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare
statutes invalid although they may be abused and
misabused135 and may afford an opportunity for abuse in
the manner of application.136 The validity of a statute or
ordinance is to be determined from its general purpose and
its efficiency to accomplish the end desired,not from its
effects in a particular case.137 PP 1017 is merely an
invocation of the Presidents calling-out power. Its general
purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished
the end desired which prompted President Arroyo to issue
PP 1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or
violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance
unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by
which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of
power, and not a mere incidental result arising from its

exertion.138This is logical. Just imagine the absurdity of

situations when laws maybe declared unconstitutional just
because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders
committed by policemen in the cases passed upon by the
Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the
provisions of PP 1017. General orders are "acts and
commands of the President in his capacity as Commanderin-Chief of the Armed Forces of the Philippines." They are
internal rules issued by the executive officer to his
subordinates precisely for
the proper and efficientadministration of law. Such rules
and regulations create no relation except between the official
who issues them and the official who receives them.139 They
are based on and are the product of, a relationship in which
power is their source, and obedience, their object.140 For
these reasons, one requirement for these rules to be valid is
that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately
carry out the "necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and
lawless violence."
Unlike the term "lawless violence" which is unarguably
extant in our statutes and the Constitution, and which is
invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous
and vague concept. Congress has yet to enact a law
defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an
agreed definition of terrorism" confronts not only our country,
but the international community as well. The following
observations are quite apropos:
In the actual unipolar context of international relations, the
"fight against terrorism" has become one of the basic
slogans when it comes to the justification of the use of force
against certain states and against groups operating
internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being
updated according to criteria that are not always known to
the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions or
threats of the use of force as the most recent by the United
States against Iraq consists in the absence of an agreed
definition of terrorism.
Remarkable confusion persists in regard to the legal
categorization of acts of violence either by states, by armed
groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One
countrys terrorist is another countrys freedom fighter." The
apparent contradiction or lack of consistency in the use of
the term "terrorism" may further be demonstrated by the
historical fact that leaders of national liberation movements
such as Nelson Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a
few, were originally labeled as terrorists by those who

controlled the territory at the time, but later became

internationally respected statesmen.
What, then, is the defining criterion for terrorist acts
the differentia specifica distinguishing those acts from
eventually legitimate acts of national resistance or selfdefense?
Since the times of the Cold War the United Nations
Organization has been trying in vain to reach a consensus
on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge
the gap between those who associate "terrorism" with any
violent act by non-state groups against civilians, state
functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of
force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups
within a state is concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation
Organization (PLO) which is a terrorist group for Israel and
a liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of
India, liberation fighters in that of Pakistan the earlier
Contras in Nicaragua freedom fighters for the United
States, terrorists for the Socialist camp or, most drastically,
the Afghani Mujahedeen (later to become the Taliban
movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States,
and a terrorist gang for the Soviet Union. One could go on
and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way
because of opposing political interests that are at the roots of
those perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and
its actions be explained? In our analysis, the basic reason
for these striking inconsistencies lies in the divergent interest
of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of
terrorism will "fluctuate" accordingly. A state may eventually
see itself as protector of the rights of a certain ethnic group
outside its territory and will therefore speak of a "liberation
struggle," not of "terrorism" when acts of violence by this
group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of
these conflicting interests of sovereign states that determine
in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been
the unavoidable consequence.
This "definitional predicament" of an organization consisting
of sovereign states and not of peoples, in spite of the
emphasis in the Preamble to the United Nations Charter!
has become even more serious in the present global power
constellation: one superpower exercises the decisive role in
the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being

marginalized; and the problem has become even more acute

since the terrorist attacks of 11 September 2001 I the United
States.141
The absence of a law defining "acts of terrorism" may result
in abuse and oppression on the part of the police or military.
An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police
may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an
act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty
thereon.
So far, the word "terrorism" appears only once in our criminal
laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted
by President Marcos during the Martial Law regime. This
decree is entitled "Codifying The Various Laws on AntiSubversion and Increasing The Penalties for Membership in
Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who
conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by
force, violence, terrorism, x x x shall be punished
byreclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws
the Communist Party of the Philippines) enacted by
President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define "acts of terrorism." Since there
is no law defining "acts of terrorism," it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect
is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices
and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the
calling-out power of the President. Certainly, they violate the
due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the
military or police to commit acts beyond what arenecessary
and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be
secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for
any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be
seized."142 The plain import of the language of the
Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that

between person and police must stand the protective

authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain
facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the
basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and
booked like a criminal suspect; fourth,he was treated
brusquely by policemen who "held his head and tried to push
him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for
insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal
Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense.
(b) When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies
petitioner Davids warrantless arrest. During the inquest for
the charges of inciting to sedition and violation of BP 880,
all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption
that petitioner David was the leader of the
rally.146 Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is
insufficient to charge him with inciting to sedition. Further,
he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is
that not only was their right against warrantless arrest
violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances.
"Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a

necessary consequence of our republican institution and

complements the right of speech. As in the case of freedom
of expression, this right is not to be limited, much less
denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to
prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to
previous restraint or censorship. It may not be conditioned
upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly
required.
The ringing truth here is that petitioner David, et al. were
arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to
seditionand violation of BP 880 were mere afterthought.
Even the Solicitor General, during the oral argument, failed
to justify the arresting officers conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be
made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a
crime. The holding of meetings for peaceable political action
cannot be proscribed. Those who assist in the conduct of
such meetings cannot be branded as criminals on that score.
The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not
as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling
have committed crimes elsewhere, if they have formed or
are engaged in a conspiracy against the public peace and
order, they may be prosecuted for their conspiracy or other
violations of valid laws.But it is a different matter when the
State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly
and a lawful public discussion as the basis for a
criminal charge.
On the basis of the above principles, the Court likewise
considers the dispersal and arrest of the members of KMUet
al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and
present danger of a substantive evil that the State has a
right to prevent."149 Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the
citizens right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between
protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate
assemblies and rallies is lodged with the local government
units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the

determination of the presence of clear and present danger.

Here, petitioners were not even notified and heard on the
revocation of their permits.150 The first time they learned of it
was at the time of the dispersal. Such absence of notice is a
fatal defect. When a persons right is restricted by
government action, it behooves a democratic government to
see to it that the restriction is fair, reasonable, and according
to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another
facet of freedom of speech i.e., the freedom of the press.
Petitioners narration of facts, which the Solicitor General
failed to refute, established the following: first, theDaily
Tribunes offices were searched without warrant;second, the
police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o
clock in the morning of February 25, 2006; fourth,the search
was conducted in the absence of any official of the Daily
Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government
officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was "meant to show a
strong presence, to tell media outlets not to connive or
do anything that would help the rebels in bringing down
this government." Director General Lomibao further stated
that "if they do not follow the standards and the
standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will
recommend a takeover." National Telecommunications
Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that
his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media
coverage during times when the national security is
threatened.151
The search is illegal. Rule 126 of The Revised Rules on
Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with
one specific offence to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful
occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality.
And Section 9 states that the warrant must direct that it be
served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the
day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners freedom of the
press. The best gauge of a free and democratic society rests
in the degree of freedom enjoyed by its media. In the Burgos
v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the
business and printing offices of the "Metropolitan Mail" and

the "We Forum" newspapers. As a consequence of the

search and seizure, these premises were padlocked and
sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes
a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently
anathematic to a democratic framework where a free,
alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and
sealed like the "Metropolitan Mail" and "We Forum"
newspapers in the above case, yet it cannot be denied that
the CIDG operatives exceeded their enforcement duties. The
search and seizure of materials for publication, the stationing
of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media,
are plain censorship. It is that officious functionary of the
repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than
what he is permitted to say on pain of punishment should he
be so rash as to disobey.153 Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because
of its anti-government sentiments. This Court cannot tolerate
the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to
comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto
should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General
admitted that the search of the Tribunes offices and the
seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible "for any purpose,"
thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that
the policemen, when inspected the Tribune for the purpose
of gathering evidence and you admitted that the policemen
were able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally
seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily
Tribune; all you have to do is to get those past issues. So
why do you have to go there at 1 oclock in the morning and

without any search warrant? Did they become suddenly part

of the evidence of rebellion or inciting to sedition or what?

constitutional or statutory breaches if applied according to

their letter."

SOLGEN BENIPAYO:

The Court has passed upon the constitutionality of these

issuances. Its ratiocination has been exhaustively presented.
At this point, suffice it to reiterate that PP 1017 is limited to
the calling out by the President of the military to prevent or
suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the
citizens rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.

Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is
not based on any law, and it is not based on Proclamation
1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because
there is nothing in 1017 which says that the police could go
and inspect and gather clippings from Daily Tribune or any
other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont
know if it is premature to say this, we do not condone
this. If the people who have been injured by this would
want to sue them, they can sue and there are remedies
for this.156
Likewise, the warrantless arrests and seizures executed by
the police were, according to the Solicitor General, illegal
and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in
your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed
illegal or unlawful acts committed on the occasion of 1017,
as I said, it cannot be condoned. You cannot blame the
President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5
are constitutional in every aspect and "should result in no

In this connection, Chief Justice Artemio V. Panganibans

concurring opinion, attached hereto, is considered an
integral part of this ponencia.
SUMMAT IO N
In sum, the lifting of PP 1017 through the issuance of PP
1021 a supervening event would have normally rendered
this case moot and academic. However, while PP 1017 was
still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP
1017, or one similar to it, may not again be issued. Already,
there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the
transcendental issues raised by the parties should not be
"evaded;" they must now be resolved to prevent future
constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional
insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and
the relevant jurisprudence discussed earlier. However, PP
1017s extraneous provisions giving the President express or
implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all lawseven those not related to
lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form
of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in
the absence of a legislation, cannot take over privatelyowned public utility and private business affected with public
interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an
Order issued by the President acting as Commander-inChief addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only
the "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not
been legally defined and made punishable by Congress and
should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law
has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFPs authority in
carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated
earlier, it is also pristine clear that (1) the warrantless arrest

of petitioners Randolf S. David and Ronald Llamas; (2) the

dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards
on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017
and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot
impose any civil, criminal or administrative sanctions on the
individual police officers concerned. They have not been
individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court.
Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative
liabilities.
It is well to remember that military power is a means to
an end and substantive civil rights are ends in
themselves. How to give the military the power it needs
to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of
a democratic state.During emergency, governmental action
may vary in breadth and intensity from normal times, yet
they should not be arbitrary as to unduly restrain our
peoples liberty.
Perhaps, the vital lesson that we must learn from the
theorists who studied the various competing political
philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political
responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court
rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as
decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take
over privately-owned public utility or business affected with
public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a
standard by which the AFP and the PNP should implement
PP 1017, i.e. whatever is "necessary and appropriate
actions and measures to suppress and prevent acts of
lawless violence." Considering that "acts of terrorism" have
not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald
Llamas; the dispersal and warrantless arrest of the KMU and
NAFLU-KMU members during their rallies, in the absence of
proof that these petitioners were committing acts constituting
lawless violence, invasion or rebellion and violating BP 880;
the imposition of standards on media or any form of prior

restraint on the press, as well as the warrantless search of

the Tribune offices and whimsical seizure of its articles for
publication and other materials, are
declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.

EN BANC
G.R. No. 191002

March 17, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO APPOINTMENTS TO THE
JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S

LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF

THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
represented by its Immediate Past President, ATTY.
ISRAELITO P. TORREON, and the latter in his own
personal capacity as a MEMBER of the PHILIPPINE
BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR.
CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL
RENATO M. REYES, JR.; CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF GOVERNMENT
EMPLOYEES (COURAGE) CHAIRMAN FERDINAND
GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY) SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN
NG SAMBAYANAN PARA SA KAUNLARAN
(ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS;
TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN
JAMES MARK TERRY LACUANAN RIDON; NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF
THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA
ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA
ANN P. ROSALES; WOMEN TRIAL LAWYERS
ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA
ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN;
MA. VERENA KASILAG-VILLANUEVA; MARILYN STA.
ROMANA; LEONILA DE JESUS; and GUINEVERE DE
LEON. Intervenors.

presidential elections on May 10, 2010. Even before the

event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his
successor, considering that Section 15, Article VII (Executive
Department) of the Constitution prohibits the President or
Acting President from making appointments within two
months immediately before the next presidential elections
and up to the end of his term, except temporary
appointments to executive positions when continued
vacancies therein will prejudice public service or endanger
public safety? What is the relevance of Section 4 (1), Article
VIII (Judicial Department) of the Constitution, which provides
that any vacancy in the Supreme Court shall be filled within
90 days from the occurrence thereof, to the matter of the
appointment of his successor? May the Judicial and Bar
Council (JBC) resume the process of screening the
candidates nominated or being considered to succeed Chief
Justice Puno, and submit the list of nominees to the
incumbent President even during the period of the
prohibition under Section 15, Article VII? Does mandamus lie
to compel the submission of the shortlist of nominees by the
JBC?

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

In G.R. No. 191032,3 Jaime N. Soriano, via his petition for

prohibition, proposes to prevent the JBC from conducting its
search, selection and nomination proceedings for the
position of Chief Justice.

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP GovernorSouthern Luzon), and ATTY. ROLAND B. INTING
(IBPGovernor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY
GLORIA MACAPAGAL-ARROYO, Respondents.
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno
by May 17, 2010 occurs just days after the coming

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta
respectively commenced G.R. No. 1910021 and G.R. No.
1911492 as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the
incumbent President the list of at least three nominees for
the position of the next Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,4 the

Philippine Constitution Association (PHILCONSA) wants the
JBC to submit its list of nominees for the position of Chief
Justice to be vacated by Chief Justice Puno upon his
retirement on May 17, 2010, because the incumbent
President is not covered by the prohibition that applies only
to appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito
M. Mendoza, a former Solicitor General, seeks a ruling from
the Court for the guidance of the JBC on whether Section
15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,6 which the Court consolidated on March
9, 2010 with the petitions earlier filed, petitioners Amador Z.
Tolentino, Jr. and Roland B. Inting, Integrated Bar of the
Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC
from submitting a list of nominees for the position of Chief
Justice to the President for appointment during the period
provided for in Section 15, Article VII.

All the petitions now before the Court pose as the principal
legal question whether the incumbent President can appoint
the successor of Chief Justice Puno upon his retirement.
That question is undoubtedly impressed with transcendental
importance to the Nation, because the appointment of the
Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated
March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela),7 by which the Court held that
Section 15, Article VII prohibited the exercise by the
President of the power to appoint to judicial positions during
the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting
opinions on the issue expressed by legal luminaries one
side holds that the incumbent President is prohibited from
making appointments within two months immediately before
the coming presidential elections and until the end of her
term of office as President on June 30, 2010, while the other
insists that the prohibition applies only to appointments to
executive positions that may influence the election and,
anyway, paramount national interest justifies the
appointment of a Chief Justice during the election ban has
impelled the JBC to defer the decision to whom to send its
list of at least three nominees, whether to the incumbent
President or to her successor.8 He opines that the JBC is
thereby arrogating unto itself "the judicial function that is not
conferred upon it by the Constitution," which has limited it to
the task of recommending appointees to the Judiciary, but
has not empowered it to "finally resolve constitutional
questions, which is the power vested only in the Supreme
Court under the Constitution." As such, he contends that the
JBC acted with grave abuse of discretion in deferring the
submission of the list of nominees to the President; and that
a "final and definitive resolution of the constitutional
questions raised above would diffuse (sic) the tension in the
legal community that would go a long way to keep and
maintain stability in the judiciary and the political system."9
In G.R. No. 191032, Soriano offers the view that the JBC
committed a grave abuse of discretion amounting to lack or
excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and
selection process for the position of Chief Justice to succeed
Chief Justice Puno, because the appointing authority for the
position of Chief Justice is the Supreme Court itself, the
Presidents authority being limited to the appointment of the
Members of the Supreme Court. Hence, the JBC should not
intervene in the process, unless a nominee is not yet a
Member of the Supreme Court.10
For its part, PHILCONSA observes in its petition in G.R. No.
191057 that "unorthodox and exceptional circumstances
spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to
Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution" have bred
"a frenzied inflammatory legal debate on the constitutional

provisions mentioned that has divided the bench and the bar
and the general public as well, because of its dimensional
impact to the nation and the people," thereby fashioning
"transcendental questions or issues affecting the JBCs
proper exercise of its "principal function of recommending
appointees to the Judiciary" by submitting only to the
President (not to the next President) "a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy" from which the members of the Supreme Court
and judges of the lower courts may be
appointed."11 PHILCONSA further believes and submits that
now is the time to revisit and review Valenzuela, the "strange
and exotic Decision of the Court en banc."12
Peralta states in his petition in G.R. No. 191149 that
mandamus can compel the JBC "to immediately transmit to
the President, within a reasonable time, its nomination list for
the position of chief justice upon the mandatory retirement of
Chief Justice Reynato S. Puno, in compliance with its
mandated duty under the Constitution" in the event that the
Court resolves that the President can appoint a Chief Justice
even during the election ban under Section 15, Article VII of
the Constitution.13
The petitioners in G.R. No. 191342 insist that there is an
actual controversy, considering that the "JBC has initiated
the process of receiving applications for the position of Chief
Justice and has in fact begun the evaluation process for the
applications to the position," and "is perilously near
completing the nomination process and coming up with a list
of nominees for submission to the President, entering into
the period of the ban on midnight appointments on March
10, 2010," which "only highlights the pressing and
compelling need for a writ of prohibition to enjoin such
alleged ministerial function of submitting the list, especially if
it will be cone within the period of the ban on midnight
appointments."14
Antecedents
These cases trace their genesis to the controversy that has
arisen from the forthcoming compulsory retirement of Chief
Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to
Section 9, Article VIII, that "vacancy shall be filled within
ninety days from the occurrence thereof" from a "list of at
least three nominees prepared by the Judicial and Bar
Council for every vacancy."
On December 22, 2009, Congressman Matias V. Defensor,
an ex officio member of the JBC, addressed a letter to the
JBC, requesting that the process for nominations to the
office of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC
passed a resolution,15 which reads:
The JBC, in its en banc meeting of January 18, 2010,
unanimously agreed to start the process of filling up the

position of Chief Justice to be vacated on May 17, 2010

upon the retirement of the incumbent Chief Justice
Honorable Reynato S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates;
publish the names of candidates; accept comments on or
opposition to the applications; conduct public interviews of
candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing
authority, in the light of the Constitution, existing laws and
jurisprudence, the JBC welcomes and will consider all views
on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for
application or recommendation, and published for that
purpose its announcement dated January 20, 2010,16 viz:
The Judicial and Bar Council (JBC) announces the opening
for application or recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT, which will be vacated
on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the
JBC Secretariat xxx:
The announcement was published on January 20, 2010 in
the Philippine Daily Inquirer and The Philippine Star.17
Conformably with its existing practice, the JBC
"automatically considered" for the position of Chief Justice
the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate
Justice Renato C. Corona; Associate Justice Conchita
Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.;
and Associate Justice Antonio Eduardo B. Nachura.
However, the last two declined their nomination through
letters dated January 18, 2010 and January 25, 2010,
respectively.18
Others either applied or were nominated. Victor Fernandez,
the retired Deputy Ombudsman for Luzon, applied, but later
formally withdrew his name from consideration through his
letter dated February 8, 2010. Candidates who accepted
their nominations without conditions were Associate Justice
Renato C. Corona; Associate Justice Teresita J. LeonardoDe Castro; Associate Justice Arturo D. Brion; and Associate

Justice Edilberto G. Sandoval (Sandiganbayan). Candidates

who accepted their nominations with conditions were
Associate Justice Antonio T. Carpio and Associate Justice
Conchita Carpio Morales.19 Declining their nominations were
Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty.
Gregorio M. Batiller, Jr. (via telephone conversation with the
Executive Officer of the JBC on February 8, 2010).20
The JBC excluded from consideration former RTC Judge
Florentino Floro (for failure to meet the standards set by the
JBC rules); and Special Prosecutor Dennis Villa-Ignacio of
the Office of the Ombudsman (due to cases pending in the
Office of the Ombudsman).21
In its meeting of February 8, 2010, the JBC resolved to
proceed to the next step of announcing the names of the
following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than
February 22, 2010, to wit: Associate Justice Carpio,
Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-De Castro, Associate Justice
Brion, and Associate Justice Sandoval. The announcement
came out in the Philippine Daily Inquirer and The Philippine
Star issues of February 13, 2010.22
Issues
Although it has already begun the process for the filling of
the position of Chief Justice Puno in accordance with its
rules, the JBC is not yet decided on when to submit to the
President its list of nominees for the position due to the
controversy now before us being yet unresolved. In the
meanwhile, time is marching in quick step towards May 17,
2010 when the vacancy occurs upon the retirement of Chief
Justice Puno.
The actions of the JBC have sparked a vigorous debate not
only among legal luminaries, but also among non-legal
quarters, and brought out highly disparate opinions on
whether the incumbent President can appoint the next Chief
Justice or not. Petitioner Mendoza notes that in Valenzuela,
which involved the appointments of two judges of the
Regional Trial Court, the Court addressed this issue now
before us as an administrative matter "to avoid any possible
polemics concerning the matter," but he opines that the
polemics leading to Valenzuela "would be miniscule [sic]
compared to the "polemics" that have now erupted in regard
to the current controversy," and that unless "put to a halt,
and this may only be achieved by a ruling from the Court, the
integrity of the process and the credibility of whoever is
appointed to the position of Chief Justice, may irreparably be
impaired."23
Accordingly, we reframe the issues as submitted by each
petitioner in the order of the chronological filing of their
petitions.
G.R. No. 191002

a. Does the JBC have the power and authority to

resolve the constitutional question of whether the
incumbent President can appoint a Chief Justice
during the election ban period?
b. Does the incumbent President have the power
and authority to appoint during the election ban
the successor of Chief Justice Puno when he
vacates the position of Chief Justice on his
retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested
in the Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against
appointment under Section 15, Article VII of the
Constitution applicable only to positions in the
Executive Department?
b. Assuming that the prohibition under Section 15,
Article VII of the Constitution also applies to
members of the Judiciary, may such appointments
be excepted because they are impressed with
public interest or are demanded by the exigencies
of public service, thereby justifying these
appointments during the period of prohibition?
c. Does the JBC have the authority to decide
whether or not to include and submit the names of
nominees who manifested interest to be
nominated for the position of Chief Justice on the
understanding that his/her nomination will be
submitted to the next President in view of the
prohibition against presidential appointments from
March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution
apply to appointments to positions in the Judiciary
under Section 9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make
appointments to the Judiciary after March 10,
2010, including that for the position of Chief
Justice after Chief Justice Puno retires on May 17,
2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold
the submission of the short list to President Gloria
Macapagal-Arroyo?

G.R. No. 191342

a. Does the JBC have the authority to submit the
list of nominees to the incumbent President
without committing a grave violation of the
Constitution and jurisprudence prohibiting the
incumbent President from making midnight
appointments two months immediately preceding
the next presidential elections until the end of her
term?
b. Is any act performed by the JBC, including the
vetting of the candidates for the position of Chief
Justice, constitutionally invalid in view of the JBC's
illegal composition allowing each member from the
Senate and the House of Representatives to have
one vote each?
On February 16, 2010, the Court directed the JBC and the
Office of the Solicitor General (OSG) to comment on the
consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment,
reporting therein that the next stage of the process for the
selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the
preparation of the short list of candidates, "including the
interview of the constitutional experts, as may be
needed."24 It stated:25
Likewise, the JBC has yet to take a position on when to
submit the shortlist to the proper appointing authority, in light
of Section 4 (1), Article VIII of the Constitution, which
provides that vacancy in the Supreme Court shall be filled
within ninety (90) days from the occurrence thereof, Section
15, Article VII of the Constitution concerning the ban on
Presidential appointments "two (2) months immediately
before the next presidential elections and up to the end of
his term" and Section 261 (g), Article XXII of the Omnibus
Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final
interpreter of the Constitution, the JBC will be guided by its
decision in these consolidated Petitions and Administrative
Matter.
On February 26, 2010, the OSG also submitted its comment,
essentially stating that the incumbent President can appoint
the successor of Chief Justice Puno upon his retirement by
May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to
prevent the JBC from performing its principal function under
the Constitution to recommend appointees in the Judiciary;
(b) the JBC's function to recommend is a "continuing
process," which does not begin with each vacancy or end
with each nomination, because the goal is "to submit the list
of nominees to Malacaang on the very day the vacancy

arises";26 the JBC was thus acting within its jurisdiction when
it commenced and set in motion the process of selecting the
nominees to be submitted to the President for the position of
Chief Justice to be vacated by Chief Justice Puno;27 (c)
petitioner Soriano's theory that it is the Supreme Court, not
the President, who has the power to appoint the Chief
Justice, is incorrect, and proceeds from his misinterpretation
of the phrase "members of the Supreme Court" found in
Section 9, Article VIII of the Constitution as referring only to
the Associate Justices, to the exclusion of the Chief
Justice; 28 (d) a writ of mandamus can issue to compel the
JBC to submit the list of nominees to the President,
considering that its duty to prepare the list of at least three
nominees is unqualified, and the submission of the list is a
ministerial act that the JBC is mandated to perform under the
Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve
who has the authority to appoint the next Chief Justice and,
therefore, has no discretion to withhold the list from the
President; 29 and (e) a writ of mandamus cannot issue to
compel the JBC to include or exclude particular candidates
as nominees, considering that there is no imperative duty on
its part to include in or exclude from the list particular
individuals, but, on the contrary, the JBC's determination of
who it nominates to the President is an exercise of a
discretionary duty.30

be divided";34 and that Valenzuela also recognized that the

filling of vacancies in the Judiciary is undoubtedly in the
public interest, most especially if there is any compelling
reason to justify the making of the appointments during the
period of the prohibition.35

The OSG contends that the incumbent President may

appoint the next Chief Justice, because the prohibition under
Section 15, Article VII of the Constitution does not apply to
appointments in the Supreme Court. It argues that any
vacancy in the Supreme Court must be filled within 90 days
from its occurrence, pursuant to Section 4(1), Article VIII of
the Constitution; 31 that in their deliberations on the
mandatory period for the appointment of Supreme Court
Justices, the framers neither mentioned nor referred to the
ban against midnight appointments, or its effects on such
period, or vice versa;32 that had the framers intended the
prohibition to apply to Supreme Court appointments, they
could have easily expressly stated so in the Constitution,
which explains why the prohibition found in Article VII
(Executive Department) was not written in Article VIII
(Judicial Department); and that the framers also incorporated
in Article VIII ample restrictions or limitations on the
President's power to appoint members of the Supreme Court
to ensure its independence from "political vicissitudes" and
its "insulation from political pressures,"33 such as stringent
qualifications for the positions, the establishment of the JBC,
the specified period within which the President shall appoint
a Supreme Court Justice.

On March 9, 2010, the Court admitted the following

comments/oppositions-in-intervention, to wit:

The OSG posits that although Valenzuela involved the

appointment of RTC Judges, the situation now refers to the
appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even
recognized that there might be "the imperative need for an
appointment during the period of the ban," like when the
membership of the Supreme Court should be "so reduced
that it will have no quorum, or should the voting on a
particular important question requiring expeditious resolution

Lastly, the OSG urges that there are now undeniably

compelling reasons for the incumbent President to appoint
the next Chief Justice, to wit: (a) a deluge of cases involving
sensitive political issues is "quite expected";36 (b) the Court
acts as the Presidential Electoral Tribunal (PET), which,
sitting en banc, is the sole judge of all contests relating to the
election, returns, and qualifications of the President and Vice
President and, as such, has "the power to correct manifest
errors on the statement of votes (SOV) and certificates of
canvass (COC)";37 (c) if history has shown that during
ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the
effectivity of the Constitution, there is now even more reason
to appoint the next Chief Justice immediately upon the
retirement of Chief Justice Puno;38 and (d) should the next
Chief Justice come from among the incumbent Associate
Justices of the Supreme Court, thereby causing a vacancy, it
also becomes incumbent upon the JBC to start the selection
process for the filling up of the vacancy in accordance with
the constitutional mandate.39

(a) The opposition-in-intervention dated February

22, 2010 of Atty. Peter Irving Corvera (Corvera);40
(b) The opposition-in-intervention dated February
22, 2010 of Atty. Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February
23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated
March 1, 2010 of the National Union of People's
Lawyers (NUPL);
(e) The opposition-in-intervention dated February
25, 2010 of Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February
25, 2010 of Integrated Bar of the PhilippinesDavao del Sur Chapter and its Immediate Past
President, Atty. Israelito P. Torreon (IBP- Davao
del Sur);
(g) The opposition-in-intervention dated February
26, 2010 of Atty. Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-inintervention dated February 26, 2010 of BAYAN
Chairman Dr. Carolina P. Araullo; BAYAN

Secretary General Renato M. Reyes, Jr.;

Confederation for Unity, Recognition and
Advancement of Government Employees
(COURAGE) Chairman Ferdinand Gaite;
Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng
Nagkakaisang Kabataan ng Samayanan Para sa
Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters;
League of Filipino Students (LFS) Chairman
James Mark Terry Lacuanan Ridon; National
Union of Students of the Philippines (NUSP)
Chairman Einstein Recedes, College Editors Guild
of the Philippines (CEGP) Chairman Vijae
Alquisola; and Student Christian Movement of the
Philippines (SCMP) Chairman Ma. Cristina Angela
Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3,
2010 of Walden F. Bello and Loretta Ann P.
Rosales (Bello et al.); and
(j) The consolidated comment/opposition-inintervention dated March 4, 2010 of the Women
Trial Lawyers Organization of the Philippines
(WTLOP), represented by Atty. Yolanda
Quisumbing-Javellana; Atty. Belleza Alojado
Demaisip; Atty. Teresita Gandionco-Oledan; Atty.
Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta.
Romana; Atty. Leonila de Jesus; and Atty.
Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao
del Sur, and NUPL take the position that De Castro's petition
was bereft of any basis, because under Section 15, Article
VII, the outgoing President is constitutionally banned from
making any appointments from March 10, 2010 until June
30, 2010, including the appointment of the successor of
Chief Justice Puno. Hence, mandamus does not lie to
compel the JBC to submit the list of nominees to the
outgoing President if the constitutional prohibition is already
in effect. Tan adds that the prohibition against midnight
appointments was applied by the Court to the appointments
to the Judiciary made by then President Ramos, with the
Court holding that the duty of the President to fill the
vacancies within 90 days from occurrence of the vacancies
(for the Supreme Court) or from the submission of the list
(for all other courts) was not an excuse to violate the
constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et
al., and Bello et al. oppose the insistence that Valenzuela
recognizes the possibility that the President may appoint the
next Chief Justice if exigent circumstances warrant the
appointment, because that recognition is obiter dictum; and
aver that the absence of a Chief Justice or even an
Associate Justice does not cause epic damage or absolute
disruption or paralysis in the operations of the Judiciary.
They insist that even without the successor of Chief Justice
Puno being appointed by the incumbent President, the Court

is allowed to sit and adjudge en banc or in divisions of three,

five or seven members at its discretion; that a full
membership of the Court is not necessary; that petitioner De
Castro's fears are unfounded and baseless, being based on
a mere possibility, the occurrence of which is entirely unsure;
that it is not in the national interest to have a Chief Justice
whose appointment is unconstitutional and, therefore, void;
and that such a situation will create a crisis in the judicial
system and will worsen an already vulnerable political
situation.
ice is imperative for the stability of the judicial system and
the political situation in the country when the election-related
questions reach the Court as false, because there is an
existing law on filling the void brought about by a vacancy in
the office of Chief Justice; that the law is Section 12 of the
Judiciary Act of 1948, which has not been repealed by Batas
Pambansa Blg. 129 or any other law; that a temporary or an
acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief
Justice is not only provided for by law, but is also dictated by
practical necessity; that the practice was intended to be
enshrined in the 1987 Constitution, but the Commissioners
decided not to write it in the Constitution on account of the
settled practice; that the practice was followed under the
1987 Constitution, when, in 1992, at the end of the term of
Chief Justice Marcelo B. Fernan, Associate Justice Andres
Narvasa assumed the position as Acting Chief Justice prior
to his official appointment as Chief Justice; that said filling up
of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the
vacancy of the Chairman of the Commission on Elections,
perBrillantes v. Yorac, 192 SCRA 358; and that the history of
the Supreme Court has shown that this rule of succession
has been repeatedly observed and has become a part of its
tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim
maintain that the Omnibus Election Code penalizes as an
election offense the act of any government official who
appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or
employee during the period of 45 days before a regular
election; that the provision covers all appointing heads,
officials, and officers of a government office, agency or
instrumentality, including the President; that for the
incumbent President to appoint the next Chief Justice upon
the retirement of Chief Justice Puno, or during the period of
the ban under the Omnibus Election Code, constitutes an
election offense; that even an appointment of the next Chief
Justice prior to the election ban is fundamentally invalid and
without effect because there can be no appointment until a
vacancy occurs; and that the vacancy for the position can
occur only by May 17, 2010.
Intervenor Boiser adds that De Castro's prayer to compel the
submission of nominees by the JBC to the incumbent
President is off-tangent because the position of Chief Justice
is still not vacant; that to speak of a list, much more a
submission of such list, before a vacancy occurs is glaringly

premature; that the proposed advance appointment by the

incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be
submitted by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article
VII makes no distinction between the kinds of appointments
made by the President; and that the Court, in Valenzuela,
ruled that the appointments by the President of the two
judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the
1987 Constitution does not apply only to the appointments in
the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15
does not distinguish; and that Valenzuela already interpreted
the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano's
contention that the power to appoint the Chief Justice is
vested, not in the President, but in the Supreme Court, is
utterly baseless, because the Chief Justice is also a Member
of the Supreme Court as contemplated under Section 9,
Article VIII; and that, at any rate, the term "members" was
interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February
26, 1948) to refer to the Chief Justice and the Associate
Justices of the Supreme Court; that PHILCONSA's prayer
that the Court pass a resolution declaring that persons who
manifest their interest as nominees, but with conditions, shall
not be considered nominees by the JBC is diametrically
opposed to the arguments in the body of its petition; that
such glaring inconsistency between the allegations in the
body and the relief prayed for highlights the lack of merit of
PHILCONSA's petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the
President; and that the Court must direct the JBC to follow
the rule of law, that is, to submit the list of nominees only to
the next duly elected President after the period of the
constitutional ban against midnight appointments has
expired.
Oppositor IBP Davao del Sur opines that the JBC - because
it is neither a judicial nor a quasi-judicial body - has no duty
under the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the
period of prohibition; that even if the JBC has already come
up with a short list, it still has to bow to the strict limitations
under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial
function, but simply respecting the clear mandate of the
Constitution; and that the application of the general rule in
Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is
an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that
the JBC's act of nominating appointees to the Supreme
Court is purely ministerial and does not involve the exercise
of judgment; that there can be no default on the part of the

JBC in submitting the list of nominees to the President,

considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that
the commencement of the process of screening of applicants
to fill the vacancy in the office of the Chief Justice only
begins from the retirement on May 17, 2010, for, prior to this
date, there is no definite legal basis for any party to claim
that the submission or non-submission of the list of
nominees to the President by the JBC is a matter of right
under law.
The main question presented in all the filings herein because it involves two seemingly conflicting provisions of
the Constitution - imperatively demands the attention and
resolution of this Court, the only authority that can resolve
the question definitively and finally. The imperative demand
rests on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been
unnecessarily dragged into the harsh polemics brought on
by the controversy; second, to settle once and for all the
doubt about an outgoing President's power to appoint to the
Judiciary within the long period starting two months before
the presidential elections until the end of the presidential
term; and third, to set a definite guideline for the JBC to
follow in the discharge of its primary office of screening and
nominating qualified persons for appointment to the
Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the
petitioners have locus standi.
Black defines locus standi as "a right of appearance in a
court of justice on a given question."41 In public or
constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the
ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or
policy in order to avoid obstructing the efficient functioning of
public officials and offices involved in public service. It is
required, therefore, that the petitioner must have a personal
stake in the outcome of the controversy, for, as indicated in
Agan, Jr. v. Philippine International Air Terminals Co., Inc.:42
The question on legal standing is whether such parties have
"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."43 Accordingly, it has been held that the interest of
a person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that
the law or any government act is invalid, but also that he

sustained or is in imminent danger of sustaining some direct

injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that
the person complaining 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 or act complained of.44
It is true that as early as in 1937, in People v. Vera,45 the
Court adopted the direct injury test for determining whether a
petitioner in a public action had locus standi. There, the
Court held that the person who would assail the validity of a
statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury
as a result." Vera was followed in Custodio v. President of
the Senate,46 Manila Race Horse Trainers' Association v. De
la Fuente,47 Anti-Chinese League of the Philippines v.
Felix,48 and Pascual v. Secretary of Public Works.49
Yet, the Court has also held that the requirement of locus
standi, being a mere procedural technicality, can be waived
by the Court in the exercise of its discretion. For instance, in
1949, in Araneta v. Dinglasan,50 the Court liberalized the
approach when the cases had "transcendental importance."
Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same
way as in Araneta v. Dinglasan.51
In the 1975 decision in Aquino v. Commission on
Elections,52 this Court decided to resolve the issues raised
by the petition due to their "far-reaching implications," even if
the petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary
citizens, legislators, and civic
organizations to bring their suits involving the
constitutionality or validity of laws, regulations, and rulings. 53
However, the assertion of a public right as a predicate for
challenging a supposedly illegal or unconstitutional executive
or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner
may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently
demonstrates in his petition that he is entitled to protection or
relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not
surprising, for even if the issue may appear to concern only
the public in general, such capacities nonetheless equip the
petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo,54 the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first
laid down in Beauchamp v. Silk,55 where it was held that the
plaintiff in a taxpayer's suit is in a different category from the

plaintiff in a citizen's suit. In the former, the plaintiff is

affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People
ex rel Case v. Collins:56 "In matter of mere public right,
howeverthe people are the real partiesIt is at least
the right, if not the duty, of every citizen to interfere and
see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With
respect to taxpayer's suits, Terr v. Jordan57 held that "the
right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his
injury cannot be denied."58
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No.
191032) and Peralta (G.R. No. 191149) all assert their right
as citizens filing their petitions on behalf of the public who
are directly affected by the issue of the appointment of the
next Chief Justice. De Castro and Soriano further claim
standing as taxpayers, with Soriano averring that he is
affected by the continuing proceedings in the JBC, which
involve "unnecessary, if not, illegal disbursement of public
funds."59
PHILCONSA alleges itself to be a non-stock, non-profit
organization existing under the law for the purpose of
defending, protecting, and preserving the Constitution and
promoting its growth and flowering. It also alleges that the
Court has recognized its legal standing to file cases on
constitutional issues in several cases.60
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of
the Philippines, a member of the Philippine Bar engaged in
the active practice of law, and a former Solicitor General,
former Minister of Justice, former Member of the Interim
Batasang Pambansa and the Regular Batasang Pambansa,
and former member of the Faculty of the College of Law of
the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the
Integrated Bar of the Philippines (IBP) for Southern Luzon
and Eastern Visayas. They allege that they have the legal
standing to enjoin the submission of the list of nominees by
the JBC to the President, for "[a]n adjudication of the proper
interpretation and application of the constitutional ban on
midnight appointments with regard to respondent JBC's
function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that
obedience and respect for the Constitution is upheld, most
especially by government offices, such as respondent JBC,
who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution." They further
allege that, reposed in them as members of the Bar, is a
clear legal interest in the process of selecting the members
of the Supreme Court, and in the selection of the Chief
Justice, considering that the person appointed becomes a
member of the body that has constitutional supervision and
authority over them and other members of the legal
profession.61

The Court rules that the petitioners have each demonstrated

adequate interest in the outcome of the controversy as to
vest them with the requisite locus standi. The issues before
us are of transcendental importance to the people as a
whole, and to the petitioners in particular. Indeed, the issues
affect everyone (including the petitioners), regardless of
one's personal interest in life, because they concern that
great doubt about the authority of the incumbent President to
appoint not only the successor of the retiring incumbent
Chief Justice, but also others who may serve in the Judiciary,
which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive
the requirement of legal standing in favor of any petitioner
when the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.62
Yet, if any doubt still lingers about the locus standi of any
petitioner, we dispel the doubt now in order to remove any
obstacle or obstruction to the resolution of the essential
issue squarely presented herein. We are not to shirk from
discharging our solemn duty by reason alone of an obstacle
more technical than otherwise. In Agan, Jr. v. Philippine
International Air Terminals Co., Inc.,63 we pointed out:
"Standing is a peculiar concept in constitutional law because
in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any
other government act but by concerned citizens, taxpayers
or voters who actually sue in the public interest." But even if,
strictly speaking, the petitioners "are not covered by the
definition, it is still within the wide discretion of the Court to
waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions
raised."64
Justiciability
Intervenor NUPL maintains that there is no actual case or
controversy that is appropriate or ripe for adjudication,
considering that although the selection process commenced
by the JBC is going on, there is yet no final list of nominees;
hence, there is no imminent controversy as to whether such
list must be submitted to the incumbent President, or
reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable
controversy that is ripe for judicial determination, pointing out
that petitioner De Castro has not even shown that the JBC
has already completed its selection process and is now
ready to submit the list to the incumbent President; and that
petitioner De Castro is merely presenting a hypothetical
scenario that is clearly not sufficient for the Court to exercise
its power of judicial review.
Intervenors Corvera and Lim separately opine that De
Castro's petition rests on an overbroad and vague allegation
of political tension, which is insufficient basis for the Court to
exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are

seeking a mere advisory opinion on what the JBC and the
President should do, and are not invoking any issues that
are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of
legal rights and no assertion of opposite legal claims in any
of the petitions; that PHILCONSA does not allege any action
taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the
divided opinions and interpretations of legal experts, or
associations of lawyers and law students on the issues
published in the daily newspapers are "matters of paramount
and transcendental importance to the bench, bar and
general public"; that PHILCONSA fails not only to cite any
legal duty or allege any failure to perform the duty, but also
to indicate what specific action should be done by the JBC;
that Mendoza does not even attempt to portray the matter as
a controversy or conflict of rights, but, instead, prays that the
Court should "rule for the guidance of" the JBC; that the fact
that the Court supervises the JBC does not automatically
imply that the Court can rule on the issues presented in the
Mendoza petition, because supervision involves oversight,
which means that the subordinate officer or body must first
act, and if such action is not in accordance with prescribed
rules, then, and only then, may the person exercising
oversight order the action to be redone to conform to the
prescribed rules; that the Mendoza petition does not allege
that the JBC has performed a specific act susceptible to
correction for being illegal or unconstitutional; and that the
Mendoza petition asks the Court to issue an advisory ruling,
not to exercise its power of supervision to correct a wrong
act by the JBC, but to declare the state of the law in the
absence of an actual case or controversy.
We hold that the petitions set forth an actual case or
controversy that is ripe for judicial determination. The reality
is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them
will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC
began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the
list of nominees to the incumbent outgoing President or to
the next President, makes the situation ripe for judicial
determination, because the next steps are the public
interview of the candidates, the preparation of the short list
of candidates, and the "interview of constitutional experts, as
may be needed."
A part of the question to be reviewed by the Court is whether
the JBC properly initiated the process, there being an
insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that
is, after May 17, 2010). Another part is, of course, whether
the JBC may resume its process until the short list is
prepared, in view of the provision of Section 4(1), Article VIII,
which unqualifiedly requires the President to appoint one
from the short list to fill the vacancy in the Supreme Court

(be it the Chief Justice or an Associate Justice) within 90

days from the occurrence of the vacancy.

positions when continued vacancies therein will prejudice

public service or endanger public safety.

The ripeness of the controversy for judicial determination

may not be doubted. The challenges to the authority of the
JBC to open the process of nomination and to continue the
process until the submission of the list of nominees; the
insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent
President; the counter-insistence of the intervenors to
prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be
submitted instead to the next President; the strong position
that the incumbent President is already prohibited under
Section 15, Article VII from making any appointments,
including those to the Judiciary, starting on May 10, 2010
until June 30, 2010; and the contrary position that the
incumbent President is not so prohibited are only some of
the real issues for determination. All such issues establish
the ripeness of the controversy, considering that for some
the short list must be submitted before the vacancy actually
occurs by May 17, 2010. The outcome will not be an
abstraction, or a merely hypothetical exercise. The resolution
of the controversy will surely settle - with finality - the
nagging questions that are preventing the JBC from moving
on with the process that it already began, or that are reasons
persuading the JBC to desist from the rest of the process.

The other, Section 4 (1), Article VIII (Judicial Department),

states:

We need not await the occurrence of the vacancy by May

17, 2010 in order for the principal issue to ripe for judicial
determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable
certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for
bringing a challenge, provided the Court has sufficient facts
before it to enable it to intelligently adjudicate the
issues.65 Herein, the facts are not in doubt, for only legal
issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to
other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department),
provides:
Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make
appointments, except temporary appointments to executive

Section 4. (1). The Supreme Court shall be composed of a

Chief Justice and fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.
In the consolidated petitions, the petitioners, with the
exception of Soriano, Tolentino and Inting, submit that the
incumbent President can appoint the successor of Chief
Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments
under Section 15, Article VII does not extend to
appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional
Commission reveal that the framers devoted time to
meticulously drafting, styling, and arranging the Constitution.
Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not
arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of
what the Constitution should contain.
The Constitution consists of 18 Articles, three of which
embody the allocation of the awesome powers of
government among the three great departments, the
Legislative (Article VI), the Executive (Article VII), and the
Judicial Departments (Article VIII). The arrangement was a
true recognition of the principle of separation of powers that
underlies the political structure, as Constitutional
Commissioner Adolfo S. Azcuna (later a worthy member of
the Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the
separation of powers in government because we believe that
the only way to protect freedom and liberty is to separate
and divide the awesome powers of government. Hence, we
return to the separation of powers doctrine and the
legislative, executive and judicial departments.66
As can be seen, Article VII is devoted to the Executive
Department, and, among others, it lists the powers vested by
the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the
Article.
Article VIII is dedicated to the Judicial Department and
defines the duties and qualifications of Members of the
Supreme Court, among others. Section 4(1) and Section 9 of
this Article are the provisions specifically providing for the

appointment of Supreme Court Justices. In particular,

Section 9 states that the appointment of Supreme Court
Justices can only be made by the President upon the
submission of a list of at least three nominees by the JBC;
Section 4(1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained
in Section 15, Article VII to the appointment of Members of
the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4
(1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting
President making appointments within two months before
the next presidential elections and up to the end of the
President's or Acting President's term does not refer to the
Members of the Supreme Court.
Although Valenzuela67 came to hold that the prohibition
covered even judicial appointments, it cannot be disputed
that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the
confirmation made to the JBC by then Senior Associate
Justice Florenz D. Regalado of this Court, a former member
of the Constitutional Commission, about the prohibition not
being intended to apply to the appointments to the Judiciary,
which confirmation Valenzuela even expressly mentioned,
should prevail.
Relevantly, Valenzuela adverted to the intent of the framers
in the genesis of Section 4 (1), Article VIII, viz:
V. Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have
an eleven-member Supreme Court. Commissioner Eulogio
Lerum wanted to increase the number of Justices to fifteen.
He also wished to ensure that that number would not be
reduced for any appreciable length of time (even only
temporarily), and to this end proposed that any vacancy
"must be filled within two months from the date that the
vacancy occurs." His proposal to have a 15-member Court
was not initially adopted. Persisting however in his desire to
make certain that the size of the Court would not be
decreased for any substantial period as a result of
vacancies, Lerum proposed the insertion in the provision
(anent the Court's membership) of the same mandate that
"IN CASE OF ANY VACANCY, THE SAME SHALL BE
FILLED WITHIN TWO MONTHS FROM OCCURRENCE
THEREOF." He later agreed to suggestions to make the
period three, instead of two, months. As thus amended, the
proposal was approved. As it turned out, however, the
Commission ultimately agreed on a fifteen-member Court.
Thus it was that the section fixing the composition of the

Supreme Court came to include a command to fill up any

vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction
that any "vacancy shall be filled within ninety days" (in the
last sentence of Section 4 (1) of Article VIII) contrasts with
the prohibition in Section 15, Article VII, which is couched in
stronger negative language - that "a President or Acting
President shall not make appointments"
The commission later approved a proposal of Commissioner
Hilario G. Davide, Jr. (now a Member of this Court) to add to
what is now Section 9 of Article VIII, the following paragraph:
"WITH RESPECT TO LOWER COURTS, THE PRESIDENT
SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS
FROM THE SUBMISSION OF THE LIST" (of nominees by
the Judicial and Bar Council to the President). Davide stated
that his purpose was to provide a "uniform rule" for lower
courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the
President in view of the possibility that the President might
reject the list submitted to him and the JBC thus need more
time to submit a new one.
On the other hand, Section 15, Article VII - which in effect
deprives the President of his appointing power "two months
immediately before the next presidential elections up to the
end of his term" - was approved without discussion.68
However, the reference to the records of the Constitutional
Commission did not advance or support the result in
Valenzuela. Far to the contrary, the records disclosed the
express intent of the framers to enshrine in the Constitution,
upon the initiative of Commissioner Eulogio Lerum, "a
command [to the President] to fill up any vacancy therein
within 90 days from its occurrence," which even Valenzuela
conceded.69 The exchanges during deliberations of the
Constitutional Commission on October 8, 1986 further show
that the filling of a vacancy in the Supreme Court within the
90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the
Supreme Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this
subsection reads: "Any vacancy shall be filled within ninety
days from the occurrence thereof."
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to
fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the
fact that in the past 30 years, seldom has the Court had a
complete complement.70

Moreover, the usage in Section 4(1), Article VIII of the word

shall - an imperative, operating to impose a duty that may be
enforced71 - should not be disregarded. Thereby, Sections
4(1) imposes on the President the imperative duty to make
an appointment of a Member of the Supreme Court within 90
days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the
President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and
cannot be defeated by mere judicial interpretation in
Valenzuela to the effect that Section 15, Article VII prevailed
because it was "couched in stronger negative language."
Such interpretation even turned out to be conjectural, in light
of the records of the Constitutional Commission's
deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is
hardly warranted. According to an authority on statutory
construction:72
xxx the court should seek to avoid any conflict in the
provisions of the statute by endeavoring to harmonize and
reconcile every part so that each shall be effective. It is not
easy to draft a statute, or any other writing for that matter,
which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict
may not have seemed so to the drafter. Undoubtedly, each
provision was inserted for a definite reason. Often by
considering the enactment in its entirety, what appears to be
on its face a conflict may be cleared up and the provisions
reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word
or provision meaningless because of inconsistency. But a
word should not be given effect, if to do so gives the statute
a meaning contrary to the intent of the legislature. On the
other hand, if full effect cannot be given to the words of a
statute, they must be made effective as far as possible. Nor
should the provisions of a statute which are inconsistent be
harmonized at a sacrifice of the legislative intention. It may
be that two provisions are irreconcilable; if so, the one which
expresses the intent of the law-makers should control. And
the arbitrary rule has been frequently announced that where
there is an irreconcilable conflict between the different
provisions of a statute, the provision last in order of position
will prevail, since it is the latest expression of the legislative
will. Obviously, the rule is subject to deserved criticism. It is
seldom applied, and probably then only where an
irreconcilable conflict exists between different sections of the
same act, and after all other means of ascertaining the
meaning of the legislature have been exhausted. Where the
conflict is between two statutes, more may be said in favor of
the rule's application, largely because of the principle of
implied repeal.

In this connection, PHILCONSA's urging of a revisit and a

review of Valenzuela is timely and appropriate. Valenzuela
arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand
independently of any other provision, least of all one found in
Article VII. It further ignored that the two provisions had no
irreconcilable conflict, regardless of Section 15, Article VII
being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that
defeats the intent of the framers.73
Consequently, prohibiting the incumbent President from
appointing a Chief Justice on the premise that Section 15,
Article VII extends to appointments in the Judiciary cannot
be sustained. A misinterpretation like Valenzuela should not
be allowed to last after its false premises have been
exposed.74 It will not do to merely distinguish Valenzuela
from these cases, for the result to be reached herein is
entirely incompatible with what Valenzuela decreed.
Consequently, Valenzuela now deserves to be quickly sent
to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all
other appointments in the Judiciary.
There is no question that one of the reasons underlying the
adoption of Section 15 as part of Article VII was to eliminate
midnight appointments from being made by an outgoing
Chief Executive in the mold of the appointments dealt with in
the leading case of Aytona v. Castillo.75 In fact, in Valenzuela,
the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against
two types of appointments: (1) those made for buying votes
and (2) those made for partisan considerations. The first
refers to those appointments made within the two months
preceding a Presidential election and are similar to those
which are declared election offenses in the Omnibus
Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15,
Article VII consists of the so-called "midnight" appointments.
In Aytona v. Castillo, it was held that after the proclamation
of Diosdado Macapagal as duly elected President, President
Carlos P. Garcia, who was defeated in his bid for reelection,
became no more than a "caretaker" administrator whose
duty was to "prepare for the orderly transfer of authority to
the incoming President." Said the Court:
"The filling up of vacancies in important positions, if few, and
so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment
and appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one night

and the planned induction of almost all of them in a few

hours before the inauguration of the new President may, with
some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a
mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments."
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made
even after the proclamation of the new President. Such
appointments, so long as they are "few and so spaced as to
afford some assurance of deliberate action and careful
consideration of the need for the appointment and the
appointee's qualifications," can be made by the outgoing
President. Accordingly, several appointments made by
President Garcia, which were shown to have been well
considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona
ruling. It may not unreasonably be deemed to contemplate
not only "midnight" appointments - those made obviously for
partisan reasons as shown by their number and the time of
their making - but also appointments presumed made for the
purpose of influencing the outcome of the Presidential
election.
On the other hand, the exception in the same Section 15 of
Article VII - allowing appointments to be made during the
period of the ban therein provided - is much narrower than
that recognized in Aytona. The exception allows only the
making of temporary appointments to executive positions
when continued vacancies will prejudice public service or
endanger public safety. Obviously, the article greatly restricts
the appointing power of the President during the period of
the ban.
Considering the respective reasons for the time frames for
filling vacancies in the courts and the restriction on the
President's power of appointment, it is this Court's view that,
as a general proposition, in case of conflict, the former
should yield to the latter. Surely, the prevention of votebuying and similar evils outweighs the need for avoiding
delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of
the ban which, incidentally and as earlier pointed out, comes
to exist only once in every six years. Moreover, those
occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting
and permanent in their effects. They may, as earlier pointed
out, in fact influence the results of elections and, for that
reason, their making is considered an election offense.76
Given the background and rationale for the prohibition in
Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The
framers did not need to extend the prohibition to

appointments in the Judiciary, because their establishment

of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried
and deliberate prior process of the JBC ensured that there
would no longer be midnight appointments to the Judiciary. If
midnight appointments in the mold of Aytona were made in
haste and with irregularities, or made by an outgoing Chief
Executive in the last days of his administration out of a
desire to subvert the policies of the incoming President or for
partisanship,77 the appointments to the Judiciary made after
the establishment of the JBC would not be suffering from
such defects because of the JBC's prior processing of
candidates. Indeed, it is axiomatic in statutory construction
that the ascertainment of the purpose of the enactment is a
step in the process of ascertaining the intent or meaning of
the enactment, because the reason for the enactment must
necessarily shed considerable light on "the law of the
statute," i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose,
and the court should seek to carry out this purpose rather
than to defeat it.78
Also, the intervention of the JBC eliminates the danger that
appointments to the Judiciary can be made for the purpose
of buying votes in a coming presidential election, or of
satisfying partisan considerations. The experience from the
time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by
people influential with the President could not always be
assured of being recommended for the consideration of the
President, because they first had to undergo the vetting of
the JBC and pass muster there. Indeed, the creation of the
JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on
Appointments. This insulating process was absent from the
Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15,
Article VII to appointments in the Judiciary was confirmed by
then Senior Associate Justice Regalado to the JBC itself
when it met on March 9, 1998 to discuss the question raised
by some sectors about the "constitutionality of xxx
appointments" to the Court of Appeals in light of the
forthcoming presidential elections. He assured that "on the
basis of the (Constitutional) Commission's records, the
election ban had no application to appointments to the Court
of Appeals."79 This confirmation was accepted by the JBC,
which then submitted to the President for consideration the
nominations for the eight vacancies in the Court of Appeals.80
The fault of Valenzuela was that it accorded no weight and
due consideration to the confirmation of Justice Regalado.
Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the
deliberations of the Constitutional Commission. Much of the
unfounded doubt about the President's power to appoint
during the period of prohibition in Section 15, Article VII
could have been dispelled since its promulgation on
November 9, 1998, had Valenzuela properly acknowledged

and relied on the confirmation of a distinguished member of

the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section
14, Section15, and Section 16) concern the appointing
powers of the President.
Section 14 speaks of the power of the succeeding President
to revoke appointments made by an Acting President,81 and
evidently refers only to appointments in the Executive
Department. It has no application to appointments in the
Judiciary, because temporary or acting appointments can
only undermine the independence of the Judiciary due to
their being revocable at will.82 The letter and spirit of the
Constitution safeguard that independence. Also, there is no
law in the books that authorizes the revocation of
appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level
courts and the Justices of the third level courts may only be
removed for cause, but the Members of the Supreme Court
may be removed only by impeachment.
Section 16 covers only the presidential appointments that
require confirmation by the Commission on Appointments.
Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on
Appointments after the requirement was removed from the
1973 Constitution. Yet, because of Section 9 of Article VIII,
the restored requirement did not include appointments to the
Judiciary.83
Section 14, Section 15, and Section 16 are obviously of the
same character, in that they affect the power of the President
to appoint. The fact that Section 14 and Section 16 refer only
to appointments within the Executive Department renders
conclusive that Section 15 also applies only to the Executive
Department. This conclusion is consistent with the rule that
every part of the statute must be interpreted with reference
to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the
general intent of the whole enactment.84 It is absurd to
assume that the framers deliberately situated Section 15
between Section 14 and Section 16, if they intended Section
15 to cover all kinds of presidential appointments. If that was
their intention in respect of appointments to the Judiciary, the
framers, if only to be clear, would have easily and surely
inserted a similar prohibition in Article VIII, most likely within
Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15
extends to appointments to the Judiciary further undermines
the intent of the Constitution of ensuring the independence
of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary
and the Supreme Court to the fortunes or misfortunes of
political leaders vying for the Presidency in a presidential
election. Consequently, the wisdom of having the new
President, instead of the current incumbent President,
appoint the next Chief Justice is itself suspect, and cannot

ensure judicial independence, because the appointee can

also become beholden to the appointing authority. In
contrast, the appointment by the incumbent President does
not run the same risk of compromising judicial
independence, precisely because her term will end by June
30, 2010.
Sixth. The argument has been raised to the effect that there
will be no need for the incumbent President to appoint during
the prohibition period the successor of Chief Justice Puno
within the context of Section 4 (1), Article VIII, because
anyway there will still be about 45 days of the 90 days
mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the
coming vacancy occurring from Chief Justice Puno's
retirement by May 17, 2010. It ignores the need to apply
Section 4(1) to every situation of a vacancy in the Supreme
Court.
The argument also rests on the fallacious assumption that
there will still be time remaining in the 90-day period under
Section 4(1), Article VIII. The fallacy is easily demonstrable,
as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be
held on the second Monday of May, letting the elections fall
on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period
of the prohibition is 115 days. If such elections are held on
May 14, the period of the prohibition is 109 days. Either
period of the prohibition is longer than the full mandatory 90day period to fill the vacancy in the Supreme Court. The
result is that there are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of
109 days and the 90-day mandatory period for
appointments) in which the outgoing President would be in
no position to comply with the constitutional duty to fill up a
vacancy in the Supreme Court. It is safe to assume that the
framers of the Constitution could not have intended such an
absurdity. In fact, in their deliberations on the mandatory
period for the appointment of Supreme Court Justices under
Section 4 (1), Article VIII, the framers neither discussed, nor
mentioned, nor referred to the ban against midnight
appointments under Section 15, Article VII, or its effects on
the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply
to a vacancy in the Supreme Court, or in any of the lower
courts.
Seventh. As a matter of fact, in an extreme case, we can
even raise a doubt on whether a JBC list is necessary at all
for the President - any President - to appoint a Chief Justice
if the appointee is to come from the ranks of the sitting
justices of the Supreme Court.
Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be

appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for any
vacancy. Such appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the
Supreme Court from the outside, that is, a non-member of
the Court aspiring to become one. It speaks of candidates
for the Supreme Court, not of those who are already
members or sitting justices of the Court, all of whom have
previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent
Justices of the Court as Chief Justice?
The question is not squarely before us at the moment, but it
should lend itself to a deeper analysis if and when
circumstances permit. It should be a good issue for the
proposed Constitutional Convention to consider in the light of
Senate President Juan Ponce Enrile's statement that the
President can appoint the Chief Justice from among the
sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the
President to appoint the successor of Chief Justice Puno,
considering that the Judiciary Act of 1948 can still address
the situation of having the next President appoint the
successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. - In case of a
vacancy in the office of Chief Justice of the Supreme Court
or of his inability to perform the duties and powers of his
office, they shall devolve upon the Associate Justice who is
first in precedence, until such disability is removed, or
another Chief Justice is appointed and duly qualified. This
provision shall apply to every Associate Justice who
succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the event of
a vacancy in the office of the Chief Justice, or in the event
that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and
powers of the office of the Chief Justice shall devolve upon
the Associate Justice who is first in precedence until a new
Chief Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on
this peripheral matter after the Court has hereby resolved

the question of consequence, we do not find it amiss to

confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the
Supreme Court is composed of a Chief Justice and 14
Associate Justices, who all shall be appointed by the
President from a list of at least three nominees prepared by
the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments. With
reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in
an acting capacity. The express reference to a Chief Justice
abhors the idea that the framers contemplated an Acting
Chief Justice to head the membership of the Supreme Court.
Otherwise, they would have simply written so in the
Constitution. Consequently, to rely on Section 12 of the
Judiciary Act of 1948 in order to forestall the imperative need
to appoint the next Chief Justice soonest is to defy the plain
intent of the Constitution.
For sure, the framers intended the position of Chief Justice
to be permanent, not one to be occupied in an acting or
temporary capacity. In relation to the scheme of things under
the present Constitution, Section 12 of the Judiciary Act of
1948 only responds to a rare situation in which the new
Chief Justice is not yet appointed, or in which the incumbent
Chief Justice is unable to perform the duties and powers of
the office. It ought to be remembered, however, that it was
enacted because the Chief Justice appointed under the 1935
Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process
might take longer than expected.
The appointment of the next Chief Justice by the incumbent
President is preferable to having the Associate Justice who
is first in precedence take over. Under the Constitution, the
heads of the Legislative and Executive Departments are
popularly elected, and whoever are elected and proclaimed
at once become the leaders of their respective Departments.
However, the lack of any appointed occupant of the office of
Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary.
The Chief Justice performs functions absolutely significant to
the life of the nation. With the entire Supreme Court being
the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the
appointment of the next Chief Justice, aside from its being
mandatory for the incumbent President to make within the
90-day period from May 17, 2010, there is no justification to
insist that the successor of Chief Justice Puno be appointed
by the next President.
Historically, under the present Constitution, there has been
no wide gap between the retirement and the resignation of
an incumbent Chief Justice, on one hand, and the
appointment to and assumption of office of his successor, on

the other hand. As summarized in the comment of the OSG,

the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired
on April 18, 1988, Chief Justice Pedro Yap was
appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988,
Chief Justice Marcelo Fernan was appointed on
the same day;
3. When Chief Justice Fernan resigned on
December 7, 1991, Chief Justice Andres Narvasa
was appointed the following day, December 8,
1991;
4. When Chief Justice Narvasa retired on
November 29, 1998, Chief Justice Hilario Davide,
Jr. was sworn into office the following early
morning of November 30, 1998;
5. When Chief Justice Davide retired on
December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day,
December 20, 2005; and
6. When Chief Justice Panganiban retired on
December 6, 2006, Chief Justice Reynato S. Puno
took his oath as Chief Justice at midnight of
December 6, 2006.85
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to
the President?
Mandamus shall issue when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an
act that the law specifically enjoins as a duty resulting from
an office, trust, or station.86 It is proper when the act against
which it is directed is one addressed to the discretion of the
tribunal or officer.Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way.87
For mandamus to lie, the following requisites must be
complied with: (a) the plaintiff has a clear legal right to the
act demanded; (b) it must be the duty of the defendant to
perform the act, because it is mandated by law; (c) the
defendant unlawfully neglects the performance of the duty
enjoined by law; (d) the act to be performed is ministerial,
not discretionary; and (e) there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of
law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to

submit a list of at least three nominees to the President for
every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges
of lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy. Such appointments
need no confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of
the list.
However, Section 4(1) and Section 9, Article VIII, mandate
the President to fill the vacancy in the Supreme Court within
90 days from the occurrence of the vacancy, and within 90
days from the submission of the list, in the case of the lower
courts. The 90-day period is directed at the President, not at
the JBC. Thus, the JBC should start the process of selecting
the candidates to fill the vacancy in the Supreme Court
before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit
to the President the list of nominees to fill a vacancy in the
Supreme Court in order to enable the President to appoint
one of them within the 90-day period from the occurrence of
the vacancy. The JBC has no discretion to submit the list to
the President after the vacancy occurs, because that
shortens the 90-day period allowed by the Constitution for
the President to make the appointment. For the JBC to do so
will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the
ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC
before making the appointment.
The duty of the JBC to submit a list of nominees before the
start of the President's mandatory 90-day period to appoint is
ministerial, but its selection of the candidates whose names
will be in the list to be submitted to the President lies within
the discretion of the JBC. The object of the petitions for
mandamus herein should only refer to the duty to submit to
the President the list of nominees for every vacancy in the
Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that
duty.88 For mandamus to lie against the JBC, therefore, there
should be an unexplained delay on its part in recommending
nominees to the Judiciary, that is, in submitting the list to the
President.
The distinction between a ministerial act and a discretionary
one has been delineated in the following manner:

The distinction between a ministerial and discretionary act is

well delineated. A purely ministerial act or duty is one
which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty
upon a public officer and gives him the right to decide
how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither
the exercise of official discretion or judgment.89

(a) To resume its proceedings for the

nomination of candidates to fill the
vacancy to be created by the
compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees
for the position of Chief Justice;
(c) To submit to the incumbent President
the short list of nominees for the position
of Chief Justice on or before May 17,
2010; and

Accordingly, we find no sufficient grounds to grant the

petitions for mandamus and to issue a writ of mandamus
against the JBC. The actions for that purpose are premature,
because it is clear that the JBC still has until May 17, 2010,
at the latest, within which to submit the list of nominees to
the President to fill the vacancy created by the compulsory
retirement of Chief Justice Puno.
IV

(d) To continue its proceedings for the

nomination of candidates to fill other
vacancies in the Judiciary and submit to
the President the short list of nominees
corresponding thereto in accordance
with this decision.
SO ORDERED.

Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is
ineluctable that only the President can appoint the Chief
Justice. Hence, Soriano's petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening
in the process of nominating the successor of Chief Justice
Puno, lacks merit.

G.R. No. 165276

On the other hand, the petition for prohibition in G.R. No.

191342 is similarly devoid of merit. The challenge mounted
against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio
members from the Senate and the House of
Representatives, thereby prejudicing the chances of some
candidates for nomination by raising the minimum number of
votes required in accordance with the rules of the JBC, is not
based on the petitioners' actual interest, because they have
not alleged in their petition that they were nominated to the
JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lack locus standi on that issue.

JUDGE ADORACION G. ANGELES, Petitioner,

vs.
HON. MANUEL B. GAITE, Acting Deputy Executive
Secretary for Legal Affairs; HON. WALDO Q. FLORES,
Senior Deputy Executive Secretary, Office of the
President; Former DOJ SECRETARY HERNANDO B.
PEREZ (now substituted by the Incumbent DOJ
Secretary RAUL GONZALES); Former PROV. PROS.
AMANDO C. VICENTE (now substituted by the
Incumbent PROV. PROS. ALFREDO L. GERONIMO);
PROS. BENJAMIN R. CARAIG, Malolos, Bulacan; and
MICHAEL T. VISTAN, Respondents.

THIRD DIVISION

DECISION

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and
mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R.
No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R.
No. 191032 and G.R. No. 191342 for lack of merit;
and
3. Grants the petition in A.M. No. 10-2-5-SC and,
accordingly, directs the Judicial and Bar Council:

November 25, 2009

PERALTA, J.:
Before this Court is a Petition for Review,1 under Rule 43 of
the 1997 Rules of Civil Procedure, assailing the February 13,
2004 Decision2 and September 16, 2004 Resolution3 of the
Court of Appeals (CA) in CA-G.R. SP No. 76019.
The facts of the case, as alleged by petitioner and likewise
adopted by the CA, are as follows:

Petitioner [Judge Adoracion G. Angeles] was the foster

mother of her fourteen (14) year-old grandniece Maria
Mercedes Vistan who, in April 1990 was entrusted to the
care of the former by the girls grandmother and petitioners
sister Leonila Angeles Vda. de Vistan when the child was
orphaned at the tender age of four.
Petitioner provided the child with love and care, catered to
her needs, sent her to a good school and attended to her
general well-being for nine (9) memorable and happy years.
The child also reciprocated the affections of her foster
mother and wrote the latter letters.
Petitioners love for the child extended to her siblings,
particularly her half-brother respondent Michael Vistan, a
former drug-addict, and the latters family who were regular
beneficiaries of the undersigneds generosity. Michael would
frequently run to the undersigned for his variety of needs
ranging from day to day subsistence to the medical and
hospital expenses of his children.
In the evening of 11 April 1999, Michael Vistan had a falling
out with petitioner for his failure to do a very important errand
for which he was severely reprimanded over the phone. He
was told that from then on, no assistance of any kind would
be extended to him and that he was no longer welcome at
petitioners residence.
Feeling thwarted, he, in conspiracy with his co-horts (sic),
retaliated on 12 April 1999 by inducing his half-sister, Maria
Mercedes, to leave petitioners custody. Michael used to
have free access to the undersigneds house and he took
the girl away while petitioner was at her office.
In the evening of that day, 12 April 1999, petitioner,
accompanied by her friend Ines Francisco, sought Michael
Vistan in his residence in Sta. Cruz, Guiguinto, Bulacan to
confront him about the whereabouts of his half-sister. He
disclosed that he brought the girl to the residence of her
maternal relatives in Sta. Monica, Hagonoy, Bulacan.
Petitioner then reported the matter and requested for the
assistance of the 303rd Criminal Investigation and Detective
Group Field Office in Malolos, Bulacan to locate the girl.
Consequently, PO3 Paquito M. Guillermo and Ruben Fred
Ramirez accompanied petitioner and her friend to Hagonoy,
Bulacan where they coordinated with police officers from the
said place. The group failed to find the girl. Instead, they
were given the run-around as the spouses Ruben and
Lourdes Tolentino and spouses Gabriel and Olympia
Nazareno misled them with the false information that Maria
Mercedes was already brought by their brother Carmelito
Guevarra and the latters wife Camilia to Casiguran, Quezon
Province.
On 13 April 1999, petitioner filed a complaint for Kidnapping
under Article 271 of the Revised Penal Code (Inducing a
Minor to Abandon His Home) against Michael Vistan, the
Tolentino spouses, the Nazareno spouses and Guevarra
spouses, all maternal relatives of Maria Mercedes Vistan.

Warrants of arrest were subsequently issued against them

and to evade the long arm of the law, Michael Vistan went
into hiding. He dragged along with him his half-sister Maria
Mercedes.
From 12 April 1999 to 16 April 1999, Michael Vistan, with his
little sister in tow, shuttled back and forth from Guiguinto to
Hagonoy, Bulacan as well as in Manila and Quezon City,
living the life of a fugitive from justice. He eventually brought
the girl to ABS-CBN in Quezon City where he made her
recite a concocted tale of child abuse against herein
petitioner hoping that this would compel the latter to
withdraw the kidnapping charge which she earlier filed.
In the early morning of 16 April 1999, Michael Vistan brought
Maria Mercedes to the DSWD after he felt himself cornered
by the police dragnet laid for him.
Prompted by his overwhelming desire to retaliate against
petitioner and get himself off the hook from the kidnapping
charge, Michael Vistan had deliberately, maliciously, selfishly
and insensitively caused undue physical, emotional and
psychological sufferings to Maria Mercedes Vistan, all of
which were greatly prejudicial to her well-being and
development.
Thus, on 1 December 1999, petitioner filed a complaint
against Michael Vistan before the Office of the Provincial
Prosecutor in Malolos, Bulacan for five counts of Violation of
Section 10 (a), Article VI of RA 7610, otherwise known as the
Child Abuse Act, and for four counts of Violation of Sec. 1 (e)
of PD 1829. She likewise filed a complaint for Libel against
Maria Cristina Vistan, aunt of Michael and Maria Mercedes.
In a Resolution dated March 3, 2000, Investigating
Prosecutor Benjamin R. Caraig recommended upheld (sic)
the charge of Violation of RA 7160 but recommended that
only one Information be filed against Michael Vistan. The
charge of Violation of PD 1829 was dismissed. Nonetheless,
the Resolution to uphold the petitioners complaint against
Maria Cristina Vistan must (sic) remained.
However, Provincial Prosecutor Amando C. Vicente denied
the recommendation of the Investigating Prosecutor that
Michael Vistan be indicted for Violation RA 7610. He also
approved the recommendation for the dismissal of the
charge for Violation of PD 1829.
On 14 April 2000, petitioner filed a Motion for Partial
Reconsideration. This was denied in a Resolution dated 28
April 2000.
Petitioner then filed a Petition for Review before the
Department of Justice on 18 May 2000. She also filed a
Supplement thereto on 19 May 2000.
In a Resolution dated 5 April 2001, Undersecretary Manuel
A.J. Teehankee, acting for the Secretary of Justice, denied

the petition for review. The undersigneds Motion for

Reconsideration filed on 25 April 2001 was likewise denied
by then DOJ Secretary Hernando B. Perez in a Resolution
dated 15 October 2001.
On 26 November 2001, the undersigned filed a Petition for
Review before the Office of President. The petition was
dismissed and the motion for reconsideration was denied
before said forum anchored on Memorandum Circular No.
58 which bars an appeal or a petition for review of
decisions/orders/resolutions of the Secretary of Justice
except those involving offenses punishable by reclusion
perpetua or death.4
On March 18, 2003, petitioner filed a petition for
review5 before the CA assailing the Order of the Office of
President. Petitioner argued that the Office of the President
erred in not addressing the merits of her petition by relying
on Memorandum Circular No. 58, series of 1993. Petitioner
assailed the constitutionality of the memorandum circular,
specifically arguing that Memorandum Circular No. 58 is an
invalid regulation because it diminishes the power of control
of the President and bestows upon the Secretary of Justice,
a subordinate officer, almost unfettered power.6 Moreover,
petitioner contended that the Department of Justice (DOJ)
erred in dismissing the complaint against respondent
Michael Vistan for violations of Presidential Decree No.
18297 (PD No. 1829) and for violation of Republic Act No.
76108 (RA No. 7610).9
On February 13, 2004, the CA rendered a Decision,
dismissing the petition, the dispositive portion of which
reads:
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED for lack of merit.10
The CA affirmed the position of the Solicitor General (OSG)
to apply the doctrine of qualified political agency, to wit:
When the President herself did not revoke the order issued
by respondent Acting Deputy Executive Secretary for Legal
Affairs nor saw the necessity to exempt petitioners case
from the application of Memorandum Circular No. 58, the act
of the latter is deemed to be an act of the President herself.11
Moreover, the CA ruled that the facts of the case as
portrayed by petitioner do not warrant the filing of a separate
Information for violation of Section 1(e) of PD No.
1829.12 Lastly, the CA ruled that the DOJ did not err when it
dismissed the complaint for violation for RA No. 7610 as the
same was not attended by grave abuse of discretion.
Petitioner filed a Motion for Reconsideration,13 which was,
however, denied by the CA in a Resolution dated September
16, 2004.

Hence, herein petition, with petitioner raising the following

assignment of errors, to wit:
1. THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE RELIANCE OF THE
OFFICE OF THE PRESIDENT IN THE
PROVISIONS OF MEMORANDUM CIRCULAR
NO. 58.
2. THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE DISMISSAL BY
THE DOJ SECRETARY OF THE COMPLAINT OF
VIOLATION OF SECTION 1(E). P.D. 1829
(OBSTRUCTION OF JUSTICE) AGAINST
PRIVATE RESPONDENT MICHAEL VISTAN.
3. THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE DISMISSAL OF
THE COMPLAINT OF VIOLATION OF R.A. 7610
(CHILD ABUSE) AGAINST PRIVATE
RESPONDENT MICHAEL VISTAN.14
The petition is without merit.
Petitioner's arguments have no leg to stand on. They are
mere suppositions without any basis in law. Petitioner argues
in the main that Memorandum Circular No. 58 is an invalid
regulation, because it diminishes the power of control of the
President and bestows upon the Secretary of Justice, a
subordinate officer, almost unfettered power.15 This argument
is absurd. The President's act of delegating authority to the
Secretary of Justice by virtue of said Memorandum Circular
is well within the purview of the doctrine of qualified political
agency, long been established in our jurisdiction.
Under this doctrine, which primarily recognizes the
establishment of a single executive, "all executive and
administrative organizations are adjuncts of the Executive
Department; the heads of the various executive departments
are assistants and agents of the Chief Executive; and,
except in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive
are performed by and through the executive departments,
and the acts of the secretaries of such departments,
performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief
Executive."16 The CA cannot be deemed to have committed
any error in upholding the Office of the President's reliance
on the Memorandum Circular as it merely interpreted and
applied the law as it should be.
As early as 1939, in Villena v. Secretary of Interior,17 this
Court has recognized and adopted from American
jurisprudence this doctrine of qualified political agency, to wit:

x x x With reference to the Executive Department of the

government, there is one purpose which is crystal-clear and
is readily visible without the projection of judicial searchlight,
and that is, the establishment of a single, not plural,
Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall
be vested in a President of the Philippines." This means that
the President of the Philippines is the Executive of the
Government of the Philippines, and no other. The heads of
the executive departments occupy political positions and
hold office in an advisory capacity, and, in the language of
Thomas Jefferson, "should be of the President's bosom
confidence" (7 Writings, Ford ed., 498), and, in the language
of Attorney-General Cushing (7 Op., Attorney-General, 453),
"are subject to the direction of the President." Without
minimizing the importance of the heads of the various
departments, their personality is in reality but the projection
of that of the President. Stated otherwise, and as forcibly
characterized by Chief Justice Taft of the Supreme Court of
the United States, "each head of a department is, and must
be, the President's alter ego in the matters of that
department where the President is required by law to
exercise authority" (Myers v. United States, 47 Sup. Ct.
Rep., 21 at 30; 272 U.S., 52 at 133; 71 Law. ed., 160).18
Memorandum Circular No. 58,19 promulgated by the Office of
the President on June 30, 1993 reads:
In the interest of the speedy administration of justice, the
guidelines enunciated in Memorandum Circular No. 1266 (4
November 1983) on the review by the Office of the President
of resolutions/orders/decisions issued by the Secretary of
Justice concerning preliminary investigations of criminal
cases are reiterated and clarified.
No appeal from or petition for review of
decisions/orders/resolutions of the Secretary of Justice
on preliminary investigations of criminal cases shall be
entertained by the Office of the President, except those
involving offenses punishable by reclusion perpetua to
death x x x.
Henceforth, if an appeal or petition for review does not
clearly fall within the jurisdiction of the Office of the
President, as set forth in the immediately preceding
paragraph, it shall be dismissed outright x x x.
It is quite evident from the foregoing that the President
himself set the limits of his power to review
decisions/orders/resolutions of the Secretary of Justice in
order to expedite the disposition of cases. Petitioner's
argument that the Memorandum Circular unduly expands the
power of the Secretary of Justice to the extent of rendering
even the Chief Executive helpless to rectify whatever errors
or abuses the former may commit in the exercise of his
discretion20 is purely speculative to say the least. Petitioner
cannot second- guess the President's power and the
President's own judgment to delegate whatever it is he

deems necessary to delegate in order to achieve proper and

speedy administration of justice, especially that such
delegation is upon a cabinet secretary his own alter ego.
Nonetheless, the power of the President to delegate is not
without limits. No less than the Constitution provides for
restrictions. Justice Jose P. Laurel, in his ponencia in Villena,
makes this clear:
x x x Withal, at first blush, the argument of ratification may
seem plausible under the circumstances, it should be
observed that there are certain prerogative acts which, by
their very nature, cannot be validated by subsequent
approval or ratification by the President. There are certain
constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by him in
person and no amount of approval or ratification will validate
the exercise of any of those powers by any other person.
Such, for instance, is his power to suspend the writ of
habeas corpus and proclaim martial law (par. 3, sec. 11, Art.
VII) and the exercise by him of the benign prerogative of
mercy (par. 6, sec. 11, idem).21
These restrictions hold true to this day as they remain
embodied in our fundamental law. There are certain
presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the
supersedence of executive prerogatives over those
exercised by co-equal branches of government.22 The
declaration of martial law, the suspension of the writ of
habeas corpus, and the exercise of the pardoning power,
notwithstanding the judicial determination of guilt of the
accused, all fall within this special class that demands the
exclusive exercise by the President of the constitutionally
vested power.23 The list is by no means exclusive, but there
must be a showing that the executive power in question is of
similar gravitasand exceptional import.24
In the case at bar, the power of the President to review the
Decision of the Secretary of Justice dealing with the
preliminary investigation of cases cannot be considered as
falling within the same exceptional class which cannot be
delegated. Besides, the President has not fully abdicated his
power of control as Memorandum Circular No. 58 allows an
appeal if the imposable penalty is reclusion perpetua or
higher. Certainly, it would be unreasonable to impose upon
the President the task of reviewing all preliminary
investigations decided by the Secretary of Justice. To do so
will unduly hamper the other important duties of the
President by having to scrutinize each and every decision of
the Secretary of Justice notwithstanding the latters expertise
in said matter.
In Constantino, Jr. v. Cuisia,25 this Court discussed the
predicament of imposing upon the President duties which
ordinarily should be delegated to a cabinet member, to wit:

The evident exigency of having the Secretary of Finance

implement the decision of the President to execute the debtrelief contracts is made manifest by the fact that the process
of establishing and executing a strategy for managing the
governments debt is deep within the realm of the expertise
of the Department of Finance, primed as it is to raise the
required amount of funding, achieve its risk and cost
objectives, and meet any other sovereign debt management
goals.
If, as petitioners would have it, the President were to
personally exercise every aspect of the foreign borrowing
power, he/she would have to pause from running the country
long enough to focus on a welter of time-consuming detailed
activitiesthe propriety of incurring/guaranteeing loans,
studying and choosing among the many methods that may
be taken toward this end, meeting countless times with
creditor representatives to negotiate, obtaining the
concurrence of the Monetary Board, explaining and
defending the negotiated deal to the public, and more often
than not, flying to the agreed place of execution to sign the
documents. This sort of constitutional interpretation
would negate the very existence of cabinet positions
and the respective expertise which the holders thereof
are accorded and would unduly hamper the Presidents
effectivity in running the government.26
Based on the foregoing considerations, this Court cannot
subscribe to petitioners position asking this Court to allow
her to appeal to the Office of the President, notwithstanding
that the crimes for which she charges respondent are not
punishable by reclusion perpetua to death.
It must be remembered that under the Administrative Code
of 1987 (EO No. 292), the Department of Justice, under the
leadership of the Secretary of Justice, is the governments
principal law agency. As such, the Department serves as the
governments prosecution arm and administers the
governments criminal justice system by investigating crimes,
prosecuting offenders and overseeing the correctional
system, which are deep within the realm of its
expertise.27 These are known functions of the Department of
Justice, which is under the executive branch and, thus,
within the Chief Executive's power of control.
Petitioners contention that Memorandum Circular No. 58
violates both the Constitution and Section 1, Chapter 1,
Book III of EO No. 292, for depriving the President of his
power of control over the executive departments deserves
scant consideration. In the first place, Memorandum Circular
No. 58 was promulgated by the Office of the President and it
is settled that the acts of the secretaries of such
departments, performed and promulgated in the regular
course of business are, unless disapproved or reprobated by
the Chief Executive, presumptively the acts of the Chief
Executive.28 Memorandum Circular No. 58 has not been
reprobated by the President; therefore, it goes without
saying that the said Memorandum Circular has the approval
of the President.

Anent the second ground raised by petitioner, the same is

without merit.
Petitioner argues that the evasion of arrest constitutes a
violation of Section 1(e) of PD No. 1829, the same is quoted
hereunder as follows:
(e) Delaying the prosecution of criminal case by obstructing
the service of processes or court orders or disturbing
proceedings in the fiscals' offices in Tanodbayan, or in the
courts. x x x
Specifically, petitioner contends that respondent's act of
going underground obstructed the service of a court process,
particularly the warrant of arrest.29
This Court does not agree.
There is no jurisprudence that would support the stance
taken by petitioner. Notwithstanding petitioner's vehement
objection in the manner the CA had disposed of the said
issue, this Court agrees with the same. The CA ruled that the
position taken by petitioner was contrary to the spirit of the
law on "obstruction of justice," in the wise:
x x x It is a surprise to hear from petitioner who is a member
of the bench to argue that unserved warrants are tantamount
to another violation of the law re: "obstruction of justice."
Petitioner is like saying that every accused in a criminal case
is committing another offense of "obstruction of justice" if and
when the warrant of arrest issued for the former offense/
charge is unserved during its life or returned unserved after
its life and that the accused should be charged therewith
re: "obstruction of justice." What if the warrant of arrest for
the latter charge ("obstruction of justice") is again unserved
during its life or returned unserved? To follow the line of
thinking of petitioner, another or a second charge of
"obstruction of justice" should be filed against the accused.
And if the warrant of arrest issued on this second charge is
not served, again, a third charge of "obstruction of justice" is
warranted or should be filed against the accused. Thus,
petitioner is effectively saying that the number of charges for
"obstruction of justice" is counting and/or countless, unless
and until the accused is either arrested or voluntarily
surrendered. We, therefore, find the position taken by
petitioner as contrary to the intent and spirit of the law on
"obstruction of justice." x x x30
As correctly observed by the CA, the facts of the case, as
portrayed by petitioner, do not warrant the filing of a separate
information for violation of Section 1(e) of PD No. 1829. This
Court agrees with the CA that based on the evidence
presented by petitioner, the failure on the part of the
arresting officer/s to arrest the person of the accused makes
the latter a fugitive from justice and is not equivalent to a
commission of another offense of obstruction of justice.31

Petitioner, however, vehemently argues that the law does not

explicitly provide that it is applicable only to another person
and not to the offender himself.32 Petitioner thus contends
that where the "law does not distinguish, we should not
distinguish."33
Again, this Court does not agree.
Petitioner conveniently forgets that it is a basic rule of
statutory construction that penal statutes are to be liberally
construed in favor of the accused.34 Courts must not bring
cases within the provision of a law which are not clearly
embraced by it. No act can be pronounced criminal which is
not clearly made so by statute; so, too, no person who is not
clearly within the terms of a statute can be brought within
them.35 Any reasonable doubt must be resolved in favor of
the accused.36
Indeed, if the law is not explicit that it is applicable only to
another person and not the offender himself, this Court must
resolve the same in favor of the accused. In any case, this
Court agrees with the discussion of the CA, however
sarcastic it may be, is nevertheless correct given the
circumstances of the case at bar.
Lastly, petitioner argues that the CA erred in upholding the
dismissal of the complaint against respondent for violation of
Section 10 (a), Article VI, of RA No. 7610. Said Section
reads:
Any person who shall commit any other act of child abuse,
cruelty or exploitation or responsible for other conditions
prejudicial to the child's development, including those
covered by Article 59 of PD No. 603, as amended, but not
covered by the Revised Penal Code, as amended, shall
suffer the penalty of prision mayor in its minimum period.
On this note, the Provincial Prosecutor in disapproving the
recommendation of the Investigating Prosecutor to file the
information for violation of Section 10(a), Article VI, of RA
No. 7610, gave the following reasons:
APPROVED for: (1) x x x (2) x x x The recommendation to
file an information for viol. of Sec. 10 (a) RA # 7610 vs. M.
Vistan is hereby denied. The affidavit of Ma. Mercedes
Vistan, the minor involved, is to the effect that she found
happiness and peace of mind away from the complainant
and in the company of her relatives, including her brother,
respondent Michael Vistan. How can her joining the brother
be prejudicial to her with such statement?37

x x x the determination of probable cause for the filing of an

information in court is an executive function, one that
properly pertains at the first instance to the public prosecutor
and, ultimately, to the Secretary of Justice. For this reason,
the Court considers it sound judicial policy to refrain from
interfering in the conduct of preliminary investigations and to
leave the Department of Justice ample latitude of discretion
in the determination of what constitutes sufficient evidence to
establish probable cause for the prosecution of supposed
offenders. Consistent with this policy, courts do not reverse
the Secretary of Justices findings and conclusions on the
matter of probable cause except in clear cases of grave
abuse of discretion. Thus, petitioners will prevail only if they
can show that the CA erred in not holding that public
respondents resolutions were tainted with grave abuse of
discretion.391avvphi1
Were the acts of the Provincial Prosecutor or the Secretary
of Justice tainted with grave abuse of discretion?
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment which is equivalent to an
excess or lack of jurisdiction. The abuse of discretion must
be so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined
by law, or to act not at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner
by reason of passion or hostility.40
Based on the foregoing, this Court finds that the provincial
prosecutor and the Secretary of Justice did not act with
grave abuse of discretion, as their conclusion of lack of
probable cause was based on the affidavit of the alleged
victim herself. The reasons for the cause of action were
stated clearly and sufficiently. Was their reliance on the
victim's affidavit constitutive of grave abuse of discretion?
This Court does not think so.
While petitioner would argue that the victim was
"brainwashed" by respondent into executing the
affidavit,41 this Court finds no conclusive proof thereof.
Besides, even if their reliance on the victims affidavit may be
wrong, it is elementary that not every erroneous conclusion
of fact is an abuse of discretion.42 As such, this Court will not
interfere with the said findings of the Provincial Prosecutor
and the Secretary of Justice absent a clear showing of grave
abuse of discretion. The determination of probable cause
during a preliminary investigation is a function that belongs
to the prosecutor and ultimately on the Secretary of Justice;
it is an executive function, the correctness of the exercise of
which is a matter that this Court will not pass upon absent a
showing of grave abuse of discretion.

Said finding was affirmed by the Secretary of Justice.

This Court is guided by First Women's Credit Corporation
and Shig Katamaya v. Hon. Hernando B. Perez et. al,38where
this Court emphasized the executive nature of preliminary
investigations, to wit:

WHEREFORE, premises considered, the February 13, 2004

Decision and September 16, 2004 Resolution of the Court of
Appeals in CA-G.R. SP No. 76019 are hereby AFFIRMED.
SO ORDERED.

EN BANC
G.R. No. 190259

June 7, 2011

DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG,

REGIE SAHALI-GENERALE Petitioners,
vs.
HON. RONALDO PUNO, in his capacity as Secretary of
the Department of Interior and Local Government and
alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and on behalf of the
President of the Philippines, ARMED FORCES OF THE
PHILIPPINES (AFP), or any of their units operating in the
Autonomous Region in Muslim Mindanao (ARMM), and
PHILIPPINE NATIONAL POLICE, or any of their units
operating in ARMM, Respondents.
DECISION

Petitioner ARMM officials claimed that the President had no

factual basis for declaring a state of emergency, especially in
the Province of Sultan Kudarat and the City of Cotabato,
where no critical violent incidents occurred. The deployment
of troops and the taking over of the ARMM constitutes an
invalid exercise of the Presidents emergency
powers.6 Petitioners asked that Proclamation 1946 as well
as AOs 273 and 273-A be declared unconstitutional and that
respondents DILG Secretary, the AFP, and the PNP be
enjoined from implementing them.
In its comment for the respondents,7 the Office of the
Solicitor General (OSG) insisted that the President issued
Proclamation 1946, not to deprive the ARMM of its
autonomy, but to restore peace and order in subject
places.8She issued the proclamation pursuant to her "calling
out" power9 as Commander-in-Chief under the first sentence
of Section 18, Article VII of the Constitution. The
determination of the need to exercise this power rests solely
on her wisdom.10 She must use her judgment based on
intelligence reports and such best information as are
available to her to call out the armed forces to suppress and
prevent lawless violence wherever and whenever these
reared their ugly heads.

ABAD, J.:
On November 24, 2009, the day after the gruesome
massacre of 57 men and women, including some news
reporters, then President Gloria Macapagal-Arroyo issued
Proclamation 1946,1 placing "the Provinces of Maguindanao
and Sultan Kudarat and the City of Cotabato under a state of
emergency." She directed the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP)
"to undertake such measures as may be allowed by the
Constitution and by law to prevent and suppress all incidents
of lawless violence" in the named places.
Three days later or on November 27, President Arroyo also
issued Administrative Order 273 (AO 273)2"transferring"
supervision of the Autonomous Region of Muslim Mindanao
(ARMM) from the Office of the President to the Department
of Interior and Local Government (DILG). But, due to issues
raised over the terminology used in AO 273, the President
issued Administrative Order 273-A (AO 273-A) amending the
former, by "delegating" instead of "transferring" supervision
of the ARMM to the DILG.3
Claiming that the Presidents issuances encroached on the
ARMMs autonomy, petitioners Datu Zaldy Uy Ampatuan,
Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM
officials,4 filed this petition for prohibition under Rule 65.
They alleged that the proclamation and the orders
empowered the DILG Secretary to take over ARMMs
operations and seize the regional governments powers, in
violation of the principle of local autonomy under Republic
Act 9054 (also known as the Expanded ARMM Act) and the
Constitution. The President gave the DILG Secretary the
power to exercise, not merely administrative supervision, but
control over the ARMM since the latter could suspend ARMM
officials and replace them.5

On the other hand, the President merely delegated through

AOs 273 and 273-A her supervisory powers over the ARMM
to the DILG Secretary who was her alter ego any way. These
orders did not authorize a take over of the ARMM. They did
not give him blanket authority to suspend or replace ARMM
officials.11 The delegation was necessary to facilitate the
investigation of the mass killings.12 Further, the assailed
proclamation and administrative orders did not provide for
the exercise of emergency powers.13
Although normalcy has in the meantime returned to the
places subject of this petition, it might be relevant to rule on
the issues raised in this petition since some acts done
pursuant to Proclamation 1946 and AOs 273 and 273-A
could impact on the administrative and criminal cases that
the government subsequently filed against those believed
affected by such proclamation and orders.
The Issues Presented
The issues presented in this case are:
1. Whether or not Proclamation 1946 and AOs 273
and 273-A violate the principle of local autonomy
under Section 16, Article X of the Constitution, and
Section 1, Article V of the Expanded ARMM
Organic Act;
2. Whether or not President Arroyo invalidly
exercised emergency powers when she called out
the AFP and the PNP to prevent and suppress all
incidents of lawless violence in Maguindanao,
Sultan Kudarat, and Cotabato City; and

3. Whether or not the President had factual bases

for her actions.
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation
and administrative orders violate the principle of local
autonomy is anchored on the allegation that, through them,
the President authorized the DILG Secretary to take over the
operations of the ARMM and assume direct governmental
powers over the region.
But, in the first place, the DILG Secretary did not take over
control of the powers of the ARMM. After law enforcement
agents took respondent Governor of ARMM into custody for
alleged complicity in the Maguindanao massacre, the ARMM
Vice-Governor, petitioner Ansaruddin Adiong, assumed the
vacated post on December 10, 2009 pursuant to the rule on
succession found in Article VII, Section 12,14 of RA 9054. In
turn, Acting Governor Adiong named the then Speaker of the
ARMM Regional Assembly, petitioner Sahali-Generale,
Acting ARMM Vice-Governor.15 In short, the DILG Secretary
did not take over the administration or operations of the
ARMM.
Two. Petitioners contend that the President unlawfully
exercised emergency powers when she ordered the
deployment of AFP and PNP personnel in the places
mentioned in the proclamation.16 But such deployment is not
by itself an exercise of emergency powers as understood
under Section 23 (2), Article VI of the Constitution, which
provides:
SECTION 23. x x x (2) In times of war or other national
emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.
The President did not proclaim a national emergency, only a
state of emergency in the three places mentioned. And she
did not act pursuant to any law enacted by Congress that
authorized her to exercise extraordinary powers. The calling
out of the armed forces to prevent or suppress lawless
violence in such places is a power that the Constitution
directly vests in the President. She did not need a
congressional authority to exercise the same.
Three. The Presidents call on the armed forces to prevent or
suppress lawless violence springs from the power vested in
her under Section 18, Article VII of the Constitution, which
provides.17

SECTION 18. The President shall be the Commander-inChief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. x
xx
While it is true that the Court may inquire into the factual
bases for the Presidents exercise of the above power,18it
would generally defer to her judgment on the matter. As the
Court acknowledged in Integrated Bar of the Philippines v.
Hon. Zamora,19 it is clearly to the President that the
Constitution entrusts the determination of the need for calling
out the armed forces to prevent and suppress lawless
violence. Unless it is shown that such determination was
attended by grave abuse of discretion, the Court will accord
respect to the Presidents judgment. Thus, the Court said:
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis, then
this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out
the armed forces is not easily quantifiable and cannot be
objectively established since matters considered for
satisfying the same is a combination of several factors which
are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment
might also prove unmanageable for the courts. Certain
pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence
upon which the President might decide that there is a need
to call out the armed forces may be of a nature not
constituting technical proof.
On the other hand, the President, as Commander-in-Chief
has a vast intelligence network to gather information, some
of which may be classified as highly confidential or affecting
the security of the state. In the exercise of the power to call,
on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and
mass destruction of property. Indeed, the decision to call out
the military to prevent or suppress lawless violence must be
done swiftly and decisively if it were to have any effect at all.
x x x.20
Here, petitioners failed to show that the declaration of a state
of emergency in the Provinces of Maguindanao, Sultan
Kudarat and Cotabato City, as well as the Presidents
exercise of the "calling out" power had no factual basis. They
simply alleged that, since not all areas under the ARMM
were placed under a state of emergency, it follows that the
take over of the entire ARMM by the DILG Secretary had no
basis too.21
But, apart from the fact that there was no such take over to
begin with, the OSG also clearly explained the factual bases
for the Presidents decision to call out the armed forces, as
follows:

The Ampatuan and Mangudadatu clans are prominent

families engaged in the political control of Maguindanao. It is
also a known fact that both families have an arsenal of
armed followers who hold elective positions in various parts
of the ARMM and the rest of Mindanao.
Considering the fact that the principal victims of the brutal
bloodshed are members of the Mangudadatu family and the
main perpetrators of the brutal killings are members and
followers of the Ampatuan family, both the military and police
had to prepare for and prevent reported retaliatory actions
from the Mangudadatu clan and additional offensive
measures from the Ampatuan clan.
xxxx
The Ampatuan forces are estimated to be approximately two
thousand four hundred (2,400) persons, equipped with about
two thousand (2,000) firearms, about four hundred (400) of
which have been accounted for. x x x
As for the Mangudadatus, they have an estimated one
thousand eight hundred (1,800) personnel, with about two
hundred (200) firearms. x x x
Apart from their own personal forces, both clans have
Special Civilian Auxiliary Army (SCAA) personnel who
support them: about five hundred (500) for the Ampatuans
and three hundred (300) for the Mangudadatus.
What could be worse than the armed clash of two warring
clans and their armed supporters, especially in light of
intelligence reports on the potential involvement of rebel
armed groups (RAGs).
One RAG was reported to have planned an attack on the
forces of Datu Andal Ampatuan, Sr. to show support and
sympathy for the victims. The said attack shall worsen the
age-old territorial dispute between the said RAG and the
Ampatuan family.

support the Mangudadatu clan in its armed fight against the

Ampatuans.22
In other words, the imminence of violence and anarchy at
the time the President issued Proclamation 1946 was too
grave to ignore and she had to act to prevent further
bloodshed and hostilities in the places mentioned. Progress
reports also indicated that there was movement in these
places of both high-powered firearms and armed men
sympathetic to the two clans.23 Thus, to pacify the peoples
fears and stabilize the situation, the President had to take
preventive action. She called out the armed forces to control
the proliferation of loose firearms and dismantle the armed
groups that continuously threatened the peace and security
in the affected places.
Notably, the present administration of President Benigno
Aquino III has not withdrawn the declaration of a state of
emergency under Proclamation 1946. It has been
reported24 that the declaration would not be lifted soon
because there is still a need to disband private armies and
confiscate loose firearms. Apparently, the presence of troops
in those places is still necessary to ease fear and tension
among the citizenry and prevent and suppress any violence
that may still erupt, despite the passage of more than a year
from the time of the Maguindanao massacre.
Since petitioners are not able to demonstrate that the
proclamation of state of emergency in the subject places and
the calling out of the armed forces to prevent or suppress
lawless violence there have clearly no factual bases, the
Court must respect the Presidents actions.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

EN BANC

xxxx
On the other hand, RAG faction which is based in Sultan
Kudarat was reported to have received three million pesos
(P3,000,000.00) from Datu Andal Ampatuan, Sr. for the
procurement of ammunition. The said faction is a force to
reckon with because the group is well capable of launching a
series of violent activities to divert the attention of the people
and the authorities away from the multiple murder case. x x x
In addition, two other factions of a RAG are likely to support
the Mangudadatu family. The Cotabato-based faction has
the strength of about five hundred (500) persons and three
hundred seventy-two (372) firearms while the Sultan
Kudarat-based faction has the strength of about four
hundred (400) persons and three hundred (300) firearms
and was reported to be moving towards Maguindanao to

G.R. No. 162230

April 28, 2010

ISABELITA C. VINUYA, VICTORIA C. DELA PEA,

HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG,
MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO, ERLINDA
MANALASTAS, TARCILA M. SAMPANG, ESTER M.
PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM,
FELICIDAD TURLA, FLORENCIA M. DELA PEA,
EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B.
MANALUS, CORAZON C. CALMA, MARTA A. GULAPA,
TEODORA M. HERNANDEZ, FERMIN B. DELA PEA,

MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL,

JUANITA M. BRIONES, VERGINIA M. GUEVARRA,
MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B.
BALINGIT, BELEN A. CULALA, PILAR Q. GALANG,
ROSARIO C. BUCO, GAUDENCIA C. DELA PEA,
RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA
C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA
O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M.
SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA
H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT,
JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M.
BANGIT, GUILLERMA S. BALINGIT, TERECITA
PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C.
GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA,
LEONICIA G. GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L.
TURLA, et al. In their capacity and as members of the
"Malaya Lolas Organization",Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO
G. ROMULO, THE HONORABLE SECRETARY OF
FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE
HONORABLE SECRETARY OF JUSTICE MERCEDITAS
N. GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely
economic sense, has been denied these former prisoners
and countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free
society and in a more peaceful world services the debt.1
There is a broad range of vitally important areas that must
be regularly decided by the Executive Department without
either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would
be strange indeed if the courts and the executive spoke with
different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained
of, we make no attempt to lay down general guidelines
covering other situations not involved here, and confine the
opinion only to the very questions necessary to reach a
decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the
Rules of Court with an application for the issuance of a writ

of preliminary mandatory injunction against the Office of the

Executive Secretary, the Secretary of the Department of
Foreign Affairs (DFA), the Secretary of the Department of
Justice (DOJ), and the Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a nonstock, non-profit organization registered with the Securities
and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military
forces in the Philippines during the Second World
War.ten.lihpwal
Petitioners narrate that during the Second World War, the
Japanese army attacked villages and systematically raped
the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned,
and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women
and held them in houses or cells, where they were
repeatedly raped, beaten, and abused by Japanese soldiers.
As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured
physical injuries, pain and disability, and mental and
emotional suffering.2
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the establishment
of the "comfort women" stations in the Philippines. However,
officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of
the comfort women for compensation had already been fully
satisfied by Japans compliance with the Peace Treaty
between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to
(a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b)
compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other
international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by
the Philippine government in the Treaty of Peace with Japan
is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement
of petitioners constituted a crime against humanity,3 sexual
slavery,4 and torture.5 They allege that the prohibition against
these international crimes is jus cogens norms from which
no derogation is possible; as such, in waiving the claims of
Filipina comfort women and failing to espouse their

complaints against Japan, the Philippine government is in

breach of its legal obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that the
Philippine governments acceptance of the "apologies" made
by Japan as well as funds from the Asian Womens Fund
(AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and
its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:

activities within a regulated environment.11 Comfort stations

would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of
occupied territories.12
Daily life as a comfort woman was "unmitigated
misery."13 The military forced victims into barracks-style
stations divided into tiny cubicles where they were forced to
live, sleep, and have sex with as many 30 soldiers per
day.14The 30 minutes allotted for sexual relations with each
soldier were 30-minute increments of unimaginable horror
for the women.15 Disease was rampant.16 Military doctors
regularly examined the women, but these checks were
carried out to prevent the spread of venereal diseases; little
notice was taken of the frequent cigarette burns, bruises,
bayonet stabs and even broken bones inflicted on the
women by soldiers. Document1zzF48331552898

Article 14. Claims and Property

a) It is recognized that Japan should pay
reparations to the Allied Powers for the damage
and suffering caused by it during the war.
Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it
is to maintain a viable economy, to make complete
reparation for all such damage and suffering and
at the present time meet its other obligations.
b) Except as otherwise provided in the present
Treaty, the Allied Powers waive all reparations
claims of the Allied Powers, other claims of the
Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the
course of the prosecution of the war, and claims of
the Allied Powers for direct military costs of
occupation.
In addition, respondents argue that the apologies made by
Japan8 have been satisfactory, and that Japan had
addressed the individual claims of the women through the
atonement money paid by the Asian Womens
Fund.1avvphi1
Historical Background
The comfort women system was the tragic legacy of the
Rape of Nanking. In December 1937, Japanese military
forces captured the city of Nanking in China and began a
"barbaric campaign of terror" known as the Rape of Nanking,
which included the rapes and murders of an estimated
20,000 to 80,000 Chinese women, including young girls,
pregnant mothers, and elderly
women.9 Document1zzF24331552898
In reaction to international outcry over the incident, the
Japanese government sought ways to end international
condemnation10 by establishing the "comfort women"
system. Under this system, the military could simultaneously
appease soldiers' sexual appetites and contain soldiers'

Fewer than 30% of the women survived the war.17 Their

agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of
shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese
government to accept legal responsibility and pay
compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations
(UN), resolutions by various nations, and the Womens
International Criminal Tribunal. The Japanese government,
in turn, responded through a series of public apologies and
the creation of the AWF.19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors
filed the first lawsuit in Japan by former comfort women
against the Japanese government. The Tokyo District Court
however dismissed their case.20 Other suits followed,21 but
the Japanese government has, thus far, successfully caused
the dismissal of every case.22
Undoubtedly frustrated by the failure of litigation before
Japanese courts, victims of the comfort women system
brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of
Columbia23 "seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and
during World War II," in violation of "both positive and
customary international law." The case was filed pursuant to
the Alien Tort Claims Act ("ATCA"),24 which allowed the
plaintiffs to sue the Japanese government in a US federal
district court.25 On October 4, 2001, the district court
dismissed the lawsuit due to lack of jurisdiction over Japan,
stating that "[t]here is no question that this court is not the

appropriate forum in which plaintiffs may seek to reopen x x

x discussions nearly half a century later x x x [E]ven if Japan
did not enjoy sovereign immunity, plaintiffs' claims are nonjusticiable and must be dismissed."

(d) Make a public apology in writing to individual

women who have come forward and can be
substantiated as women victims of Japanese
military sexual slavery;

The District of Columbia Court of Appeals affirmed the lower

court's dismissal of the case.26 On appeal, the US Supreme
Court granted the womens petition for writ of certiorari,
vacated the judgment of the District of Columbia Court of
Appeals, and remanded the case.27 On remand, the Court of
Appeals affirmed its prior decision, noting that "much as we
may feel for the plight of the appellants, the courts of the US
simply are not authorized to hear their case."28 The women
again brought their case to the US Supreme Court which
denied their petition for writ of certiorari on February 21,
2006.

(e) Raise awareness of these issues by amending

educational curricula to reflect historical realities;

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for
Military Sexual Slavery by Japan (KCWS), submitted a
petition to the UN Human Rights Commission (UNHRC),
asking for assistance in investigating crimes committed by
Japan against Korean women and seeking reparations for
former comfort women.29 The UNHRC placed the issue on its
agenda and appointed Radhika Coomaraswamy as the
issue's special investigator. In 1996, Coomaraswamy issued
a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made
the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort
stations set up by the Japanese Imperial Army
during the Second World War was a violation of its
obligations under international law and accept
legal responsibility for that violation;
(b) Pay compensation to individual victims of
Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of
the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the
right to restitution, compensation and rehabilitation
for victims of grave violations of human rights and
fundamental freedoms. A special administrative
tribunal for this purpose should be set up with a
limited time-frame since many of the victims are of
a very advanced age;
(c) Make a full disclosure of documents and
materials in its possession with regard to comfort
stations and other related activities of the
Japanese Imperial Army during the Second World
War;

(f) Identify and punish, as far as possible,

perpetrators involved in the recruitment and
institutionalization of comfort stations during the
Second World War.
Gay J. McDougal, the Special Rapporteur for the UN SubCommission on Prevention of Discrimination and Protection
of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like Practices
During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government
of Japan for 'Comfort Women Stations' established during
the Second World War,30 which contained the following
findings:
68. The present report concludes that the Japanese
Government remains liable for grave violations of human
rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese
Governments arguments to the contrary, including
arguments that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first raised
before the Nuremberg war crimes tribunal more than 50
years ago. In addition, the Japanese Governments
argument that Japan has already settled all claims from the
Second World War through peace treaties and reparations
agreements following the war remains equally unpersuasive.
This is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the
Japanese militarys direct involvement in the establishment
and maintenance of these rape centres. The Japanese
Governments silence on this point during the period in which
peace and reparations agreements between Japan and
other Asian Governments were being negotiated following
the end of the war must, as a matter of law and justice,
preclude Japan from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a
century after the cessation of hostilities is a testament to the
degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second
World War has added to the level of impunity with which
similar crimes are committed today. The Government of
Japan has taken some steps to apologize and atone for the
rape and enslavement of over 200,000 women and girls who
were brutalized in "comfort stations" during the Second
World War. However, anything less than full and unqualified

acceptance by the Government of Japan of legal liability and

the consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of Japan to
take the necessary final steps to provide adequate redress.
The UN, since then, has not taken any official action
directing Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT)
was a "people's tribunal" established by a number of Asian
women and human rights organizations, supported by an
international coalition of non-governmental
organizations.31 First proposed in 1998, the WIWCT
convened in Tokyo in 2000 in order to "adjudicate Japan's
military sexual violence, in particular the enslavement of
comfort women, to bring those responsible for it to justice,
and to end the ongoing cycle of impunity for wartime sexual
violence against women."
After examining the evidence for more than a year, the
"tribunal" issued its verdict on December 4, 2001, finding the
former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of
women.32 It bears stressing, however, that although the
tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was
organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of
California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on July
30, 2007,33 and made four distinct demands:

[I]t is the sense of the House of Representatives that the

Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion
of young women into sexual slavery, known to the world as
"comfort women", during its colonial and wartime occupation
of Asia and the Pacific Islands from the 1930s through the
duration of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior statements if
the Prime Minister of Japan were to make such an apology
as a public statement in his official capacity; (3) should
clearly and publicly refute any claims that the sexual
enslavement and trafficking of the "comfort women" for the
Japanese Imperial Army never occurred; and (4) should
educate current and future generations about this horrible
crime while following the recommendations of the
international community with respect to the "comfort
women."34
In December 2007, the European Parliament, the governing
body of the European Union, drafted a resolution similar to
House Resolution 121.35 Entitled, "Justice for Comfort
Women," the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past.
The resolution also stressed the urgency with which Japan
should act on these issues, stating: "the right of individuals to
claim reparations against the government should be
expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime
under international law, should be prioritized, taking into
account the age of the survivors."
The Canadian and Dutch parliaments have each followed
suit in drafting resolutions against Japan. Canada's
resolution demands the Japanese government to issue a
formal apology, to admit that its Imperial Military coerced or
forced hundreds of thousands of women into sexual slavery,
and to restore references in Japanese textbooks to its war
crimes.36 The Dutch parliament's resolution calls for the
Japanese government to uphold the 1993 declaration of
remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms
Parliament also produced a report in November, 2008
entitled, "Global Security: Japan and Korea" which
concluded that Japan should acknowledge the pain caused
by the issue of comfort women in order to ensure
cooperation between Japan and Korea.
Statements of Remorse made by representatives of the
Japanese government
Various officials of the Government of Japan have issued the
following public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in
1993:

The Government of Japan has been conducting a study on

the issue of wartime "comfort women" since December
1991. I wish to announce the findings as a result of that
study.

On the issue of wartime "comfort women", which seriously

stained the honor and dignity of many women, I would like to
take this opportunity once again to express my profound and
sincere remorse and apologies"

As a result of the study which indicates that comfort stations

were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort
women. Comfort stations were operated in response to the
request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the
establishment and management of the comfort stations and
the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters
who acted in response to the request of the military. The
Government study has revealed that in many cases they
were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived in
misery at comfort stations under a coercive atmosphere.

c) Letters from the Prime Minister of Japan to Individual

Comfort Women

As to the origin of those comfort women who were

transferred to the war areas, excluding those from Japan,
those from the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those
days, and their recruitment, transfer, control, etc., were
conducted generally against their will, through coaxing,
coercion, etc.
Undeniably, this was an act, with the involvement of the
military authorities of the day, that severely injured the honor
and dignity of many women. The Government of Japan
would like to take this opportunity once again to extend its
sincere apologies and remorse to all those, irrespective of
place of origin, who suffered immeasurable pain and
incurable physical and psychological wounds as comfort
women.
It is incumbent upon us, the Government of Japan, to
continue to consider seriously, while listening to the views of
learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described
above instead of evading them, and take them to heart as
lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by forever
engraving such issues in our memories through the study
and teaching of history.
As actions have been brought to court in Japan and interests
have been shown in this issue outside Japan, the
Government of Japan shall continue to pay full attention to
this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994

The issue of comfort women, with the involvement of the

Japanese military authorities at that time, was a grave affront
to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most
sincere apologies and remorse to all the women who
endured immeasurable and painful experiences and suffered
incurable physical and psychological wounds as comfort
women.
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse, should
face up squarely to its past history and accurately convey it
to future generations.
d) The Diet (Japanese Parliament) passed resolutions in
1995 and 2005
Solemnly reflecting upon the many instances of colonial rule
and acts of aggression that occurred in modern world
history, and recognizing that Japan carried out such acts in
the past and inflicted suffering on the people of other
countries, especially in Asia, the Members of this House
hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister
Shinzo Abe
I have talked about this matter in the Diet sessions last year,
and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort women. I
would like to be clear that I carry the same feeling. This has
not changed even slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the
Prime Minister and it is as stated in the statement by the
Chief Cabinet Secretary Kono. (Excerpt from Remarks by
Prime Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who
suffered hardships, and I have expressed my apologies for
the extremely agonizing circumstances into which they were

placed. (Excerpt from Telephone Conference by Prime

Minister Abe to President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to
those people who were taken as wartime comfort women. As
a human being, I would like to express my sympathies, and
also as prime minister of Japan I need to apologize to them.
My administration has been saying all along that we continue
to stand by the Kono Statement. We feel responsible for
having forced these women to go through that hardship and
pain as comfort women under the circumstances at the time.
(Excerpt from an interview article "A Conversation with
Shinzo Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my
heart goes out in sympathy to all those who suffered
extreme hardships as comfort women; and I expressed my
apologies for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are violated in
many parts of the world during the 20th Century; therefore
we must work to make the 21st Century a wonderful century
in which no human rights are violated. And the Government
of Japan and I wish to make significant contributions to that
end. (Excerpt from Prime Minister Abe's remarks at the Joint
Press Availability after the summit meeting at Camp David
between Prime Minister Abe and President Bush, April 27,
2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF
represented the government's concrete attempt to address
its moral responsibility by offering monetary compensation to
victims of the comfort women system.37 The purpose of the
AWF was to show atonement of the Japanese people
through expressions of apology and remorse to the former
wartime comfort women, to restore their honor, and to
demonstrate Japans strong respect for women.38
The AWF announced three programs for former comfort
women who applied for assistance: (1) an atonement fund
paying 2 million (approximately $20,000) to each woman;
(2) medical and welfare support programs, paying 2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter of
apology from the Japanese Prime Minister to each woman.
Funding for the program came from the Japanese
government and private donations from the Japanese
people. As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South
Korea, Taiwan, and the Philippines; 380 million
(approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine
government signed a Memorandum of Understanding for
medical and welfare support programs for former comfort
women. Over the next five years, these were implemented
by the Department of Social Welfare and Development.

Our Ruling
Stripped down to its essentials, the issue in this case is
whether the Executive Department committed grave abuse
of discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive
Department has the exclusive prerogative to determine
whether to espouse petitioners claims against Japan.
Baker v. Carr39 remains the starting point for analysis under
the political question doctrine. There the US Supreme Court
explained that:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of
deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on question.
In Taada v. Cuenco,40 we held that political questions refer
"to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."
Certain types of cases often have been found to present
political questions.41 One such category involves questions
of foreign relations. It is well-established that "[t]he conduct
of the foreign relations of our government is committed by
the Constitution to the executive and legislative--'the
political'--departments of the government, and the propriety
of what may be done in the exercise of this political power is
not subject to judicial inquiry or decision."42 The US Supreme
Court has further cautioned that decisions relating to foreign
policy
are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor
responsibility.43

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.44 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.

The Executive Department has determined that taking up

petitioners cause would be inimical to our countrys foreign
policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this
region. For us to overturn the Executive Departments
determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally
committed.

In the seminal case of US v. Curtiss-Wright Export

Corp.,45 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."

x x x [g]overnments have dealt with x x x private claims as

their own, treating them as national assets, and as counters,
`chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts
with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set
off against concessions in the other, or against larger
political considerations unrelated to debts.49

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. x x x
This ruling has been incorporated in our jurisprudence
through Bayan v. Executive Secretary46 and Pimentel v.
Executive Secretary;47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Punos
dissent in Secretary of Justice v. Lantion:48
x x x 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.

In any event, it cannot reasonably be maintained that the

Philippine government was without authority to negotiate the
Treaty of Peace with Japan. And it is equally true that, since
time immemorial, when negotiating peace accords and
settling international claims:

Indeed, except as an agreement might otherwise provide,

international settlements generally wipe out the underlying
private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a British
subject to recover a debt confiscated by the Commonwealth
of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of
the war, and that after peace is concluded, neither the matter
in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried in
oblivion; and all those things are implied by the very treaty of
peace; and therefore not necessary to be expressed. Hence
it follows, that the restitution of, or compensation for, British
property confiscated, or extinguished, during the war, by any
of the United States, could only be provided for by the treaty
of peace; and if there had been no provision, respecting
these subjects, in the treaty, they could not be agitated after
the treaty, by the British government, much less by her
subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is
certainly nothing new. For instance, in Dames & Moore v.
Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding
claims by nationals of one country against the government of
another country are "sources of friction" between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62
S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these
difficulties, nations have often entered into agreements
settling the claims of their respective nationals. As one

treatise writer puts it, international agreements settling

claims by nationals of one state against the government of
another "are established international practice reflecting
traditional international theory." L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent with that
principle, the United States has repeatedly exercised its
sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such agreements, the
President has agreed to renounce or extinguish claims of
United States nationals against foreign governments in
return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants
themselves, since a claimant's only hope of obtaining any
payment at all might lie in having his Government negotiate
a diplomatic settlement on his behalf. But it is also
undisputed that the "United States has sometimes disposed
of the claims of its citizens without their consent, or even
without consultation with them, usually without exclusive
regard for their interests, as distinguished from those of the
nation as a whole." Henkin,supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of
the United States 213 (1965)(President "may waive or
settle a claim against a foreign state x x x [even] without the
consent of the [injured] national"). It is clear that the practice
of settling claims continues today.
Respondents explain that the Allied Powers concluded the
Peace Treaty with Japan not necessarily for the complete
atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations,
but for security purposes. The treaty sought to prevent the
spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of
the free world.
This was also the finding in a similar case involving
American victims of Japanese slave labor during the war.52 In
a consolidated case in the Northern District of
California,53 the court dismissed the lawsuits filed, relying on
the 1951 peace treaty with Japan,54 because of the following
policy considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility
of future claims would be an unacceptable impediment to a
lasting peace:
Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just.
Japan's aggression caused tremendous cost, losses and
suffering.

On the other hand, to meet these claims, there stands a

Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw
materials they need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of
the Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render
any aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic Japan as
a bulwark to communism in the region increased. At the end
of 1948, MacArthur expressed the view that "[t]he use of
reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all
possible means" and "recommended that the reparations
issue be settled finally and without delay."
That this policy was embodied in the treaty is clear not only
from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval
of the treaty by the Senate. The committee noted, for
example:
Obviously insistence upon the payment of reparations in any
proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy
the initiative of its people, and create misery and chaos in
which the seeds of discontent and communism would
flourish. In short, [it] would be contrary to the basic purposes
and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that
certiorari will not lie. As a general principle and particularly
here, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the
Executive must be given ample discretion to assess the
foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that
basis if apologies are sufficient, and whether further steps
are appropriate or necessary.
The Philippines is not under any international obligation to
espouse petitioners claims.
In the international sphere, traditionally, the only means
available for individuals to bring a claim within the
international legal system has been when the individual is
able to persuade a government to bring a claim on the
individuals behalf.55 Even then, it is not the individuals rights
that are being asserted, but rather, the states own rights.
Nowhere is this position more clearly reflected than in the

dictum of the Permanent Court of International Justice

(PCIJ) in the 1924 Mavrommatis Palestine Concessions
Case:
By taking up the case of one of its subjects and by resorting
to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the
present dispute originates in an injury to a private interest,
which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is
sole claimant.56
Since the exercise of diplomatic protection is the right of the
State, reliance on the right is within the absolute discretion of
states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other
than the legal merits of the particular claim.57 As clearly
stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits
prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a
view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the
national a right to demand the performance of that
obligation, and clothe the right with corresponding
sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the
position internationally.58 (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its
protection will be granted, to what extent it is granted, and
when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the
particular case.
The International Law Commissions (ILCs) Draft Articles on
Diplomatic Protection fully support this traditional view. They
(i) state that "the right of diplomatic protection belongs to or
vests in the State,"59 (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign
prerogative" of the State;60 and (iii) stress that the state "has
the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do
so."61

It has been argued, as petitioners argue now, that the State

has a duty to protect its nationals and act on his/her behalf
when rights are injured.62 However, at present, there is no
sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of their
own nationals abroad.63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction.
If it is a duty internationally, it is only a moral and not a legal
duty, and there is no means of enforcing its
fulfillment.641avvphi1
We fully agree that rape, sexual slavery, torture, and sexual
violence are morally reprehensible as well as legally
prohibited under contemporary international law.65 However,
petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is
under a non-derogable obligation to prosecute international
crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover
monetary reparations from the state of Japan. Absent the
consent of states, an applicable treaty regime, or a directive
by the Security Council, there is no non-derogable duty to
institute proceedings against Japan. Indeed, precisely
because of states reluctance to directly prosecute claims
against another state, recent developments support the
modern trend to empower individuals to directly participate in
suits against perpetrators of international
crimes.66 Nonetheless, notwithstanding an array of General
Assembly resolutions calling for the prosecution of crimes
against humanity and the strong policy arguments
warranting such a rule, the practice of states does not yet
support the present existence of an obligation to prosecute
international crimes.67 Of course a customary duty of
prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of
granting amnesties, immunity, selective prosecution, or de
facto impunity to those who commit crimes against
humanity."68
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status
of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term
describingobligations owed by States towards the
community of states as a whole. The concept was
recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community as
a whole, and those arising vis--vis another State in the field
of diplomatic protection. By their very nature, the former are

the concern of all States. In view of the importance of the

rights involved, all States can be held to have a legal interest
in their protection; they are obligations erga
omnes.http://www.search.com/reference/Erga_omnes _note-0#_note-0
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the
body of general international law others are conferred by
international instruments of a universal or quasi-universal
character.
The Latin phrase, erga omnes, has since become one of
the rallying cries of those sharing a belief in the emergence
of a value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal
concept, its full potential remains to be realized in practice.69
The term is closely connected with the international
law concept of jus cogens. In international law, the term "jus
cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority.70
Early strains of the jus cogens doctrine have existed since
the 1700s,71 but peremptory norms began to attract greater
scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in
International Law.72 The recognition of jus cogens gained
even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties
(VCLT).73 Though there was a consensus that certain
international norms had attained the status of jus
cogens,74 the ILC was unable to reach a consensus on the
proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of
jus cogens, the ILC concluded ruefully in 1963 that "there is
not as yet any generally accepted criterion by which to
identify a general rule of international law as having the
character of jus cogens."75 In a commentary accompanying
the draft convention, the ILC indicated that "the prudent
course seems to be to x x x leave the full content of this rule
to be worked out in State practice and in the jurisprudence of
international tribunals."76 Thus, while the existence of jus
cogens in international law is undisputed, no consensus
exists on its substance,77 beyond a tiny core of principles and
rules.78
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the

unimaginable horror they underwent at the hands of the

Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those
that have offended them before appropriate fora. Needless
to say, our government should take the lead in protecting its
citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only
the power to urge andexhort the Executive Department to
take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.

EN BANC
G.R. No. 212426, January 12, 2016
RENE A.V. SAGUISAG, WIGBERTO E. TAADA,
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 PAGADUANARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASINO,Petitioners, v. EXECUTIVE PAQUITO N.
DEPARTMENT DEFENSE VOLTAIRE DEPARTMENT
SECRETARY OCHOA, JR., OF NATIONAL SECRETARY
GAZMIN, 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
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 PARTY-LIST
REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS
PARTY-LIST REPRESENTATIVE FERNANDO HICAP,
KABATAAN PARTY-LIST REPRESENTATIVE TERRY
RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN
(MAKABAYAN), REPRESENTED BY SATURNINO
OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA,
JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR
FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners, v. 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.
KILUSANG MAYO UNO, REPRESENTED BY ITS
CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS NATIONAL PRESIDENT
FERDINAND GAITE, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO,
REPRESENTED BY ITS NATIONAL PRESIDENT
JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA
ESPIRITU, VIRGINIA FLORES, AND ARMANDO
TEODORO, JR.,Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioners-in-Intervention.
DECISION
SERENO, C.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 Senate and the
Consolidation of Executive Power in the
President
Mataimtim kong pinanunumpaan (o pinatotohanan) na
tutuparin ko nang buong katapatan at sigasig ang aking mga
tungkulin bilang Pangulo (o Pangalawang Pangulo o
Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at
ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang
mga batas nito, magiging makatarungan sa bawat tao, at
itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan
nawa ako ng Diyos.
Panunumpa sa Katungkulan ng Pangulo ng Pilipinas
ayon sa Saligang Batas5cralawlawlibrary
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:chanRoblesvirtualLawlibrary
The prime duty of the Government is to serve and
protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law,
to render personal military or civil service. (Emphases
supplied)
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

cralawlawlibrary
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.
The power and duty to conduct
foreign relations
The President also carries the mandate of being the sole
organ in the conduct of foreign relations.15 Since every state
has the capacity to interact with and engage in relations with
other sovereign states,16 it is but logical that every state must

vest in an agent the authority to represent its interests to

those other sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to
the nation especially in times of war. It can only be entrusted
to that department of government which can act on the basis
of the best available information and can decide with
decisiveness, x x x It is also the President who possesses
the most comprehensive and the most confidential
information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultrasensitive 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.17cralawlawlibrary
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,19 except in instances wherein the President "may
enter into international treaties or agreements as the national
welfare and interest may require."20 This left a large margin
of discretion that the President could use to bypass the
Legislature altogether. This was a departure from the 1935
Constitution, which explicitly gave the President the power to
enter into treaties only with the concurrence of two-thirds of
all the Members of the Senate.21 The 1987 Constitution
returned the Senate's power22 and, with it, the legislative's
traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties
and international agreements under the present Constitution
is therefore shared with the Senate. This shared role,
petitioners claim, is bypassed by EDCA.

II. Historical Antecedents of EDCA

U.S. takeover of Spanish colonization
and its military bases, and the transition
to Philippine independence
The presence of the U.S. military forces in the country can
be traced to their pivotal victory in the 1898 Battle of Manila
Bay during the Spanish-American War.24 Spain relinquished
its sovereignty over the Philippine Islands in favor of the U.S.
upon its formal surrender a few months later.25 By 1899, the
Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to
impose colonial control over the Philippine Islands, General
Emilio Aguinaldo immediately led the Filipinos into an all-out
war against the U.S.27 The Filipinos were ultimately defeated
in the Philippine-American War, which lasted until 1902 and
led to the downfall of the first Philippine Republic.28 The
Americans henceforth began to strengthen their foothold in
the country.29 They took over and expanded the former
Spanish Naval Base in Subic Bay, Zambales, and put up a
cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.30
When talks of the eventual independence of the Philippine
Islands gained ground, the U.S. manifested the desire to
maintain military bases and armed forces in the
country.31 The U.S. Congress later enacted the Hare-HawesCutting 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.36This 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
Romualdez-Armacost Agreement.51 The revision pertained to
the operational use of the military bases by the U.S.
government within the context of Philippine
sovereignty,52 including the need for prior consultation with
the Philippine government on the former's use of the bases
for military combat operations or the establishment of longrange 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 Philippine60 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.
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.65Termed
as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a
new framework for their defense cooperation and the use of
Philippine installations.66 One of the proposed provisions
included an arrangement in which U.S. forces would be
granted the use of certain installations within the Philippine
naval base in Subic.67 On 16 September 1991, the Senate
rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the
resulting paucity of any formal agreement dealing with the
treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises.69 In
the meantime, the respective governments of the two
countries agreed70 to hold joint exercises at a substantially
reduced level.71
The military arrangements between them were revived in
1999 when they concluded the first Visiting Forces
Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT,"73 the
VFA has laid down the regulatory mechanism for the
treatment of U.S. military and civilian personnel visiting the
country.74 It contains provisions on the entry and departure of
U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of
certain claims; the importation and exportation of equipment,
materials, supplies, and other pieces of property owned by
the U.S. government; and the movement of U.S. military
vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a
second counterpart agreement (VFA II), which in turn
regulated the treatment of Philippine military and civilian
personnel visiting the U.S.76 The Philippine Senate
concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian
personnel started arriving in Mindanao to take part in joint
military exercises with their Filipino
counterparts.78 CalledBalikatan, these exercises involved
trainings aimed at simulating joint military maneuvers
pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into
the Mutual Logistics Support Agreement to "further the
interoperability, readiness, and effectiveness of their
respective military forces"80 in accordance with the MDT, the
Military Assistance Agreement of 1953, and the VFA.81 The
new agreement outlined the basic terms, conditions, and
procedures for facilitating the reciprocal provision of logistics
support, supplies, and services between the military forces
of the two countries. The phrase "logistics support and
services" includes billeting, operations support, construction
and use of temporary structures, and storage services during
an approved activity under the existing military
arrangements. Already extended twice, the agreement will
last until 2017.
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:chanRoblesvirtualLawlibrary
Whether the essential requisites for judicial review are
present
Whether the President may enter into an executive
agreement on foreign military bases, troops, or facilities
Whether the provisions under EDCA are consistent with
the Constitution, as well as with existing laws and
treaties
IV. Discussion
Whether the essential
requisites for judicial
review have been satisfied
Petitioners are hailing this Court's power of judicial review in
order to strike down EDCA for violating the Constitution.
They stress that our fundamental law is explicit in prohibiting
the presence of foreign military forces in the country, except
under a treaty concurred in by the Senate. Before this Court
may begin to analyze the constitutionality or validity of an
official act of a coequal branch of government, however,
petitioners must show that they have satisfied all the
essential requisites for judicial review.
Distinguished from the general notion of judicial power, the
power of judicial review specially refers to both the authority
and the duty of this Court to determine whether a branch or
an instrumentality of government has acted beyond the
scope of the latter's constitutional powers. As articulated in
Section 1, Article VIII of the Constitution, the power of judicial
review involves the power to resolve cases in which the
questions concern the constitutionality or validity of any

treaty, international or executive agreement, law, presidential

decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court
exhaustively discussed this "moderating power" as part of
the system of checks and balances under the Constitution.
In our fundamental law, the role of the Court is to determine
whether a branch of government has adhered to the specific
restrictions and limitations of the latter's
power:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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. Albam101 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.
Francisco104redressed these "pillars" under the following
categories:chanRoblesvirtualLawlibrary
1.

That there be absolute necessity of deciding a

case

2.

That rules of constitutional law shall

be formulated only as required by the facts of
the case

3.

That judgment may not be sustained on some

other ground

4.

That there be actual injury sustained by the

party by reason of the operation of the statute

5.

That the parties are not in estoppel

6.

That the Court upholds the presumption of

constitutionality (Emphases supplied)

cralawlawlibrary
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 inAngara v.
Electoral Commission:112chanroblesvirtuallawlibrary
[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)cralawlawlibrary
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.
While petitioners Saguisag et. al,
do not have legal standing,
they nonetheless raise issues
involving matters of
transcendental importance.
The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental
act have the right of appearance to bring the matter to the
court for adjudication. They must show that they have a
personal and substantial interest in the case, such that they
have sustained or are in immediate danger of sustaining,
some direct injury as a consequence of the enforcement of
the challenged governmental act.115 Here, "interest" in the
question involved must be material - an interest that is in
issue and will be affected by the official act - as distinguished
from being merely incidental or general.116 Clearly, it would
be insufficient to show that the law or any governmental act
is invalid, and that petitioners stand to suffer in some
indefinite way.117 They must show that they have a particular
interest in bringing the suit, and that they have been or are
about to be denied some right or privilege to which they are
lawfully entitled, or that they are about to be subjected to
some burden or penalty by reason of the act complained
of.118 The reason why those who challenge the validity of a
law or an international agreement are required to allege the
existence of a personal stake in the outcome of the
controversy is "to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions."119
The present petitions cannot qualify
as citizens', taxpayers', or legislators'
suits; the Senate as a body has the
requisite standing, but considering that
it has not formally filed a pleading to
join the suit, as it merely conveyed
to the Supreme Court its sense that
EDCA needs the Senate's concurrence
to be valid, petitioners continue to
suffer from lack of standing.
In assailing the constitutionality of a governmental act,
petitioners suing as citizens may dodge the requirement of
having to establish a direct and personal interest if they
show that the act affects a public right.120 In arguing that they
have legal standing, they 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(l) refers to an appropriation of funds; and that
the agreement entails a waiver of the payment of taxes,
fees, and rentals. During the oral arguments, however, they
admitted that the government had not yet appropriated or
actually disbursed public funds for the purpose of
implementing the agreement.123 The OSG, on the other
hand, maintains that petitioners cannot sue as

taxpayers.124 Respondent explains that EDCA is neither

meant to be a tax measure, nor is it directed at the
disbursement of public funds.
A taxpayer's suit concerns a case in which the official act
complained of directly involves the illegal disbursement of
public funds derived from taxation.125 Here, those challenging
the act must specifically show that they have sufficient
interest in preventing the illegal expenditure of public money,
and that they will sustain a direct injury as a result of the
enforcement of the assailed act.126 Applying that principle to
this case, they must establish that EDCA involves the
exercise by Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as
taxpayers' suits. We emphasize that a taxpayers' suit
contemplates a situation in which there is already an
appropriation or a disbursement of public funds.128 A reading
of Article X(l) of EDCA would show that there has been
neither an appropriation nor an authorization of
disbursement of funds. The cited provision
reads:chanRoblesvirtualLawlibrary
All obligations under this Agreement are subject to the
availability of appropriated funds authorized for these
purposes. (Emphases supplied)cralawlawlibrary
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
specificallyauthorized 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:134chanroblesvirtuallawlibrary

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.

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)cralawlawlibrary

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.

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

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

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

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.
Whether the President may enter into an executive
agreement on foreign military bases, troops, or facilities
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:chanRoblesvirtualLawlibrary
I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or VicePresident 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)cralawlawlibrary
This Court has interpreted the faithful execution clause as an
obligation imposed on the President, and not a separate
grant of power.148 Section 17, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in
the provision regarding the President's power of control over
the executive department, viz:
The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.cralawlawlibrary

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,161chanroblesvirtuallawlibrary
[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.cralawlawlibrary
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:163chanroblesvirtuallawlibrary
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

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:151chanroblesvirtuallawlibrary
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)cralawlawlibrary
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

Every other consideration to one side, this remains certain

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

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....cralawlawlibrary

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.

This ruling has been incorporated in our jurisprudence

through Bayan v. Executive Secretary and Pimentel v.
Executive Secretary, its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Puno's
dissent in Secretary of Justice v. Lantion:

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.168The
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.

. . . 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)
cralawlawlibrary

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:chanRoblesvirtualLawlibrary
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

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.
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:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
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.
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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."
The author of SR 105, Senator Miriam Defensor Santiago,
upon interpellation even added that the MDT, which the
Executive claims to be partly implemented through EDCA, is
already obsolete.
There are two insurmountable obstacles to this Court's
agreement with SR 105, as well as with the comment on
interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so 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
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.175It 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:chanRoblesvirtualLawlibrary

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)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
The effect of this statement is surprisingly profound, for, if
taken literally, the phrase "shall not be allowed in the
Philippines" plainly refers to the entry of bases, troops, or
facilities in the country. The Oxford English
Dictionary defines the word "allow" as a transitive verb that
means "to permit, enable"; "to give consent to the
occurrence of or relax restraint on (an action, event, or
activity)"; "to consent to the presence or attendance of (a
person)"; and, when with an adverbial of place, "to permit (a
person or animal) to go, come, or be in, out, near,
etc."181 Black's Law Dictionary defines the term as one that
means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a
preposition used to indicate "place or position in space or
anything having material extension: Within the limits or
bounds of, within (any place or thing)."183 That something is
the Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to
the initial entry of the foreign military bases, troops, or
facilities. Once entry is authorized, the subsequent acts are
thereafter subject only to the limitations provided by the rest
of the Constitution and Philippine law, and not to the Section
25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the
Philippines. This Court stated in Lim v. Executive
Secretary:chanRoblesvirtualLawlibrary
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-andrescue 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)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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.
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.197They cover
a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of
foreign military forces in the country.199
As the sole organ of our foreign relations200 and the
constitutionally assigned chief architect of our foreign
policy,201 the President is vested with the exclusive power to
conduct and manage the country's interface with other states
and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters
into international agreements; promotes trade, investments,
tourism and other economic relations; and settles
international disputes with other states.202

As previously discussed, this constitutional mandate

emanates from the inherent power of the President to enter
into agreements with other states, including the prerogative
to conclude binding executive agreements that do not
require further Senate concurrence. The existence of this
presidential power203 is so well-entrenched that Section 5(2)
(a), Article VIII of the Constitution, even provides for a check
on its exercise. As expressed below, executive agreements
are among those official governmental acts that can be the
subject of this Court's power of judicial
review:chanRoblesvirtualLawlibrary
(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:chanRoblesvirtualLawlibrary
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
(Emphases supplied)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
The categorization of subject matters that may
be covered by international
agreements mentioned in Eastern Sea Trading is not cast
in stone, x x x.
As may be noted, almost half a century has elapsed
since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international
law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the
executive agreements executed by its President from 1980
to 2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear
safety, among others. Surely, theenumeration 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:chanRoblesvirtualLawlibrary
... 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 tradeagreement 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)

cralawlawlibrary

commercial agreements.

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:chanRoblesvirtualLawlibrary

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.

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.

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.

xxxx
[T]he right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has beenconfirmed 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)cralawlawlibrary
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:207chanroblesvirtuallawlibrary
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 legislativeand 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

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 wouldexcept
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 thoseinvolving
international agreements of a permanent character usually
take the form of treaties. But international agreements
embodyingadjustments 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.cralawlawlibrary
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.

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

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)cralawlawlibrary
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.

Second, treaties are, by their very nature, considered

superior to executive agreements. Treaties are products of
the acts of the Executive and the Senate215 unlike executive
agreements, which are solely executive actions.216 Because
of legislative participation through the Senate, a treaty is
regarded as being on the same level as a statute.217 If there
is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement
is treated differently. Executive agreements that are
inconsistent with either a law or a treaty are considered
ineffective.219 Both types of international agreement are
nevertheless subject to the supremacy of the Constitution.220
This rule does not imply, though, that the President is
given carte blanche to exercise this discretion. Although the
Chief Executive wields the exclusive authority to conduct our
foreign relations, this power must still be exercised within the
context and the parameters set by the Constitution, as well

as by existing domestic and international laws. There are

constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as
those that involve the following:chanRoblesvirtualLawlibrary
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.

What we can glean from the discussions of the

Constitutional Commissioners is that they understood the
following realities:chanRoblesvirtualLawlibrary
1.

Treaties, international agreements, and executive

agreements are all constitutional manifestations of
the conduct of foreign affairs with their distinct
legal characteristics.

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.

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.

a.

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:chanRoblesvirtualLawlibrary
Petitioner parlays the notion that the Agreement is of
dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate, x x x x.
Pressing its point, petitioner submits that the subject of the

Agreement does not fall under any of the subject-categories

that x x x may be covered by an executive agreement, such
as commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.

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.

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
servandaprinciple.

Executive agreements may cover

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

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
BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested
in her by the Constitution. At the end of the day, the
President by ratifying, thru her deputies, the nonsurrender agreement did nothing more than
discharge a constitutional duty and exercise a
prerogative that pertains to her office. (Emphases
supplied)cralawlawlibrary
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

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:chanRoblesvirtualLawlibrary
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

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

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.

4.

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.
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.
EDCA is consistent with
the content, purpose, and
framework of the MDT
and the VFAThe starting point of our analysis is the rule that
"an executive agreement x x x may not be used to amend a
treaty."234 In Lim v. Executive Secretary and inNicolas 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,"235i.e., the
MDT and the VFA. The Court proceeded to examine the
extent of the term "activities" as contemplated in Articles
I236 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(10) requires that the confinement or detention be "by
Philippine authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits
that EDCA "substantially modifies or amends the VFA"242 and
follows with an enumeration of the differences between

EDCA and the VFA. While these arguments will be rebutted

more fully further on, an initial answer can already be given
to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only
regulate visits as the VFA does, but allows temporary
stationing on a rotational basis of U.S. military personnel and
their contractors in physical locations with permanent
facilities and pre-positioned military materiel.
This argument does not take into account that these
permanent facilities, while built by U.S. forces, are to be
owned by the Philippines once constructed.243 Even the VFA
allowed construction for the benefit of U.S. forces during
their temporary visits.
The second difference stated by the dissent is that EDCA
allows the prepositioning of military materiel, which can
include various types of warships, fighter planes, bombers,
and vessels, as well as land and amphibious vehicles and
their corresponding ammunition.244
However, the VFA clearly allows the same kind of
equipment, vehicles, vessels, and aircraft to be brought into
the country. Articles VII and VIII of the VFA contemplates that
U.S. equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of
the U.S. Armed Forces; as are vehicles, vessels, and aircraft
operated by or for U.S. forces in connection with activities
under the VFA. These provisions likewise provide for the
waiver of the specific duties, taxes, charges, and fees that
correspond to these equipment.
The third difference adverted to by the Justice Leonen's
dissent is that the VFA contemplates the entry of troops for
training exercises, whereas EDCA allows the use of territory
for launching military and paramilitary operations conducted
in other states.245 The dissent of Justice Teresita J.
Leonardo-De Castro also notes that VFA was intended for
non-combat activities only, whereas the entry and activities
of U.S. forces into Agreed Locations were borne of military
necessity or had a martial character, and were therefore not
contemplated by the VFA.246
This Court's jurisprudence however established in no
uncertain terms that combat-related activities, as opposed to
actual combat, were allowed under the MDT and
VFA,viz:chanRoblesvirtualLawlibrary
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.247cralawlawlibrary
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.
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:chanRoblesvirtualLawlibrary
"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)cralawlawlibrary
A thorough evaluation of how EDCA is phrased clarifies
that the agreement does not deal with the entry into the
country of U.S. personnel and contractorsper se. While
Articles 1(1 )(b)256 and II(4)257 speak of "the right to access
and use" the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed
entry into Philippine territory, for which, unlike the VFA,
EDCA has no specific provision. Instead, Article II of the
latter simply alludes to the VFA in describing U.S.
personnel, a term defined under Article I of the treaty as
follows:chanRoblesvirtualLawlibrary
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
areemployed by the United States armed
forces or who are accompanying the United
States armed forces, such as employees of
theAmerican Red Cross and the United
Services Organization.258

cralawlawlibrary
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:chanRoblesvirtualLawlibrary
1. The Government of the Philippines shall facilitate the
admission of United States personnel and their departure
from the Philippines in connection with activities covered by
this agreement.
2. United States military personnel shall be exempt from
passport and visa regulations upon entering and
departing the Philippines.
3. The following documents only, which shall be required in
respect of United States military personnel who enter the
Philippines; x x x x.
4. United States civilian personnel shall be exempt from
visa requirements but shall present, upon demand, valid
passports upon entry and departure of the Philippines.
(Emphases Supplied)cralawlawlibrary
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.
EDCA does not provide the
legal basis for admission of
U.S. contractors into Philippine
territory; their entry must be
sourced from extraneous
Philippine statutes and regulations
for the admission of alien employees
or business persons.
Of the three aforementioned classes of individuals who will
be conducting certain activities within the Agreed Locations,
we note that only U.S. contractors are not explicitly

mentioned in the VFA. This does not mean, though, that the
recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate
concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed
immediate admission into the Philippines. Articles III and IV,
in fact, merely grant them the right of access to, and the
authority to conduct certain activities within the Agreed
Locations. Since Article 11(3) of EDCA specifically leaves
out U.S. contractors from the coverage of the VFA, they shall
not be granted the same entry accommodations and
privileges as those enjoyed by U.S. military and civilian
personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the
part of the Philippines to admit U.S. contractors into the
country.259 We emphasize that the admission of aliens into
Philippine territory is "a matter of pure permission and simple
tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors
are subject to Philippine immigration laws.261 The latter must
comply with our visa and passport 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 Act267and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires
a request for removal from the Philippine government before
a member of the U.S. personnel may be "disposed] x x x
outside of the Philippines."
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:chanRoblesvirtualLawlibrary
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this
Treaty, the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their
deputies, will consult together from time to time regarding
the implementation of this Treatyand whenever in the
opinion of either of them the territorial integrity, political
independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
VISITING FORCES AGREEMENT

Preamble
xxx
Reaffirming their obligations under the Mutual Defense
Treaty of August 30, 1951;
Noting that from time to time elements of the United States
armed forces may visit the Republic of the Philippines;
Considering that cooperation between the United States
and the Republic of the Philippines promotes their
common security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means
United States military and civilian personnel temporarily in
the Philippines in connection withactivities approved by
the Philippine Government. Within this definition: x x x
Article II - Respect for Law
It is the duty of United States personnel to respect the
laws of the Republic of the Philippines and to abstain
from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in
the Philippines. The Government of the United States shall
take all measures within its authority to ensure that this is
done.
Article VII - Importation and Exportation
1. United States Government equipment, materials,
supplies, and other property imported into or acquired in
the Philippines by or on behalf of the United States armed
forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties,
taxes and other similar charges. Title to such property shall
remain with the United States, which may remove such
property from the Philippines at any time, free from export
duties, taxes, and other similar charges, xxx.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels
shall be in accordance with international custom and
practice governing such vessels, and such agreed
implementing arrangements as necessary, x x x
(Emphases Supplied)cralawlawlibrary
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 interpretation269and 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 BalikatanExercises in 2002 fell within the context of the

treaty, this Court explained:chanRoblesvirtualLawlibrary
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-andrescue 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)cralawlawlibrary
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:277chanroblesvirtuallawlibrary
These joint exercises envisioned in the VFA are not limited
to combat-related activities; they have a wide range and
variety. They include exercises that will reinforce the AFP's
ability to acquire new techniques of patrol and
surveillance to protect the country's maritime
resources; sea-search and rescue operations to assist
ships in distress; and disaster-relief operations to aid the
civilian victims of natural calamities, such as earthquakes,
typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat
maneuvers; training in aircraft maintenance and equipment
repair; civic-action projects; and consultations and meetings
of the Philippine-U.S. Mutual Defense Board. It is at the
level of the Mutual Defense Boardwhich is headed
jointly by the Chief of Staff of the AFP and the Commander in
Chief of the U.S. Pacific Commandthat the VFA
exercises are planned. Final approval of any
activity involving U.S. forces is, however, invariably given
by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that
determines what activities will be conducted between the
armed forces of the U.S. and the Philippines. The VFA
regulates and provides the legal framework for the
presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint
exercises and other related activities. (Emphases
Supplied)cralawlawlibrary
What can be gleaned from the provisions of the VFA, the

joint report of the Senate committees on foreign

relations and on national defense and security, and the
ruling of this Court in Lim is that the "activities" referred
to in the treaty are meant to be specified and identified
in further agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the
Philippine-approved activities of U.S. personnel referred to in
the VFA. EDCA allows U.S. military and civilian personnel to
perform "activities approved by the Philippines, as those
terms are defined in the VFA"278 and clarifies that these
activities include those conducted within the Agreed
Locations:chanRoblesvirtualLawlibrary
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

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

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 appropriate measures to protect U.S.
forces and contractors282

5.

Use of water, electricity, and other public utilities283

6.

Operation of their own telecommunication

systems, including the utilization of such means
and services as are required to ensure the full
ability to operate telecommunication systems, as
well as the use of the necessary radio spectrum
allocated for this purpose284

cralawlawlibrary
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:286chanroblesvirtuallawlibrary

2. ADMINISTRATION & LOGISTICS

xxxx

I.

POLICY LEVEL
xxxx
No permanent US basing and support facilities
shall be established. Temporary structures such as
those for troop billeting, classroom instruction
and messing may be set up for use by RP and
US Forces during the Exercise.
The Exercise shall be implemented jointly by RP
and US Exercise Co-Directors under the authority
of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders
will retain command over their respective
forces under the overall authority of the
Exercise Co-Directors. RP and US participants
shall comply with operational instructions of the
AFP during the FTX.
The exercise shall be conducted and completed
within a period of not more than six months, with
the projected participation of 660 US personnel
and 3,800 RP Forces. The Chief of Staff, AFP shall
direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within
the six month Exercise period.
The Exercise is a mutual counter-terrorism
advising, assisting and training
Exercise relative to Philippine efforts against the
ASG, and will be conducted on the Island of
Basilan. Further advising, assisting and training
exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will
be for support of the Exercise.

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)
cralawlawlibrary
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 JEDCA allows an unlimited period
for U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this
argument by limiting itself to 10 years of effectivity. Although
this term is automatically renewed, the process for
terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period.
Clearly, this method does not create a permanent obligation.

x x x x.
US exercise participants shall not engage in
combat, without prejudice to their right of selfdefense.
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 ofenhancing 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.

Drawing on the reasoning in Lim, we also believe that it

could not have been by chance that the VFA does not
include a maximum time limit with respect to the presence of
U.S. personnel in the country. We construe this lack of
specificity as a deliberate effort on the part of the Philippine
and the U.S. governments to leave out this aspect and
reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent,
unconditional concurrence of the Senate in the entire text of
the VFA as an implicit grant to the President of a margin of
appreciation in determining the duration of the "temporary"
presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S.
forces under EDCA is "more permanent" in
nature.289 However, this argument has not taken root by
virtue of a simple glance at its provisions on the effectivity
period. EDCA does not grant permanent bases, but rather
temporary rotational access to facilities for efficiency. As
Professor Aileen S.P. Baviera
notes:chanRoblesvirtualLawlibrary
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.290cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
Likewise, Article 36(2) of the US-Poland Status of Forces
Agreement reads:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
Section VIII of U.S.-Denmark Mutual Support
Agreement similarly provides:chanRoblesvirtualLawlibrary
8.1 This Agreement, which consists of a Preamble,
SECTIONS I-VIII, and Annexes A and B, shall become
effective on the date of the last signature affixed below
and shall remain in force until terminated by the
Parties, provided that it may be terminated by either Party
upon 180 days written notice of its intention to do so to the
other Party, (Emphasis supplied)cralawlawlibrary
On the other hand, Article XXI(3) of the U.S.-Australia Force
Posture Agreement provides a longer initial
term:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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 temporaryin 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.
Authorized activities performed by U.S. contractors within
Philippine territory - who were legitimately permitted to enter
the country independent of EDCA - are subject to relevant
Philippine statutes and regulations and must be consistent
with the MDT and the VFA
Petitioners also 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:chanRoblesvirtualLawlibrary
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 security300 and
carrying, owning, and possessing firearms301 are illegal for
foreign civilians.
The laws in place already address issues regarding the
regulation of contractors. In the 2015 Foreign Investment
Negative list,302 the Executive Department has already
identified corporations that have equity restrictions in
Philippine jurisdiction. Of note is No. 5 on the list - private
security agencies that cannot have any foreign equity by
virtue of Section 4 of Republic Act No. 5487;303 and No. 15,
which regulates contracts for the construction of 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 11(4) of EDCA, they point
out that these locations are actually military bases, as the
definition refers to facilities and areas to which U.S. military
forces have access for a variety of purposes. Petitioners
claim that there are several badges of exclusivity in the use
of the Agreed Locations by U.S. forces. First, Article V(2) of
EDCA alludes to a "return" of these areas once they are no
longer needed by U.S. forces, indicating that there would be
some transfer of use. Second, Article IV(4) of EDCA talks
about American forces' unimpeded access to the Agreed
Locations for all matters relating to the prepositioning and
storage of U.S. military equipment, supplies, and materiel.
Third, Article VII of EDCA authorizes U.S. forces to use
public utilities and to operate their own telecommunications
system.
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:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
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.325Under
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.
There are substantial matters that the U.S. cannot do under
EDCA, but which it was authorized to do under the 1947
MBA
The Philippine experience with U.S. military bases under the
1947 MBA is simply not possible under EDCA for a number
of important reasons.
First, in the 1947 MBA, the U.S. retained all rights of
jurisdiction in and over Philippine territory occupied by
American bases. In contrast, the U.S. under EDCA does not
enjoy any such right over any part of the Philippines in which
its forces or equipment may be found. Below is a
comparative table between the old treaty and
EDCA:chanRoblesvirtualLawlibrary
1947 MBA/ 1946 Treaty of
General Relations

EDCA

1947 MBA, Art. 1(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

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;
xxxx
Recognizing that all United

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

States access to and use of

facilities and areas will
beat the invitation of the
Philippines and with full
respect for the Philippine
Constitution and
Philippine laws;

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

xxxx

1947 MBA, Art. I(3):

EDCA, Art. 11(4):

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.

"Agreed
Locations" means facilities
and areas that are provided
by the Government of the
Philippines through the AFP
and that United States
forces, United States
contractors, and others as
mutually agreed, shall have
the right to access and use
pursuant to this Agreement.
Such Agreed Locations may
be listed in an annex to be
appended to this Agreement,
and may be further
described in implementing
arrangements.
EDCA, Art. V:
1.
The Philippines shall retain
ownership of and title to
Agreed Locations.
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

1946 Treaty of Gen.

Relations, Art. I:
The United States of
America agrees to
withdraw and surrender,
and does hereby withdraw
and surrender, all rights of
possession, supervision,
jurisdiction, control or
sovereignty existing and
exercised by the United
States of America in and
over the territory and the
people of the Philippine
Islands,except the use of
such bases, necessary
appurtenances to such
bases, and the rights
incident thereto, as the
United States of America,
by agreement with the
Republic of the
Philippines may deem
necessary to retain for the
mutual protection of the
Republic of the Philippines
and of the United States of
America, xxx.

EDCA

EDCA, preamble:
Recognizing that all United
States access to and use of
facilities and areas will beat
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 others as
mutually agreed, shall have
the right to access and use
pursuant to this Agreement.
Such Agreed Locations may
be listed in an annex to be
appended to this Agreement,
and may be further
described in implementing
arrangements.

Third, in EDCA, the Philippines is guaranteed access over

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

those bases.

1947 MBA

EDCA

No equivalent provision.

EDCA. Art. III(5):

The Philippine Designated
Authority and its
authorized
representative shallhave
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:chanRoblesvirtualLawlibrary
1947 MBA

1947 MBA. Art.

1(2):

EDCA

EDCA, Art. 111(4):

The Philippines hereby grants to the

United States, through bilateral
security mechanisms, such as the
MDB and SEB, operational
control of Agreed
Locations for construction
activities and authority to undertak
e 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
1947 MBA, Art.
technical requirements and
III(1)
construction standards of any such
projects undertaken by or on behalf
It is mutually agreed of United States forces should be
consistent with the requirements and
that the United
standards of both Parties.
States shall have
the rights, power
and authority
within the
bases which
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.

are necessary for

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

Fifth, the U.S. under the bases agreement was given the
authority to use Philippine territory for additional staging
areas, bombing and gunnery ranges. No such right is given
under EDCA, as seen below:chanRoblesvirtualLawlibrary
1947 MBA

EDCA

1947 MBA, Art. VI: EDCA, Art. 111(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.
1947 MBA, Art.
1(2):

With consideration of the views of

the Parties,
the Philippines herebyauthorizes an
d 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.

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.

alia, the right, power and

authority: x x x x to
improve and deepen the
harbors, channels,
entrances and
anchorages, and to
construct or maintain
necessary roads and
bridges affording access to
the bases.

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

1947 MBA. Art. III(2)(c)

EDCA

No equivalent provision.

Such rights, power and

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

Seventh, under EDCA, the U.S. is merely given temporary

access to land and facilities (including roads, ports, and
airfields). On the other hand, the old treaty gave the U.S. the
right to improve and deepen the harbors, channels,
entrances, and anchorages; and to construct or maintain
necessary roads and bridges that would afford it access to
its military bases.
1947 MBA

EDCA

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:chanRoblesvirtualLawlibrary
1947 MBA

EDCA

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 applicable from time
to time to the military forces
of the Philippines.

When requested, the

Designated Authority of the
Philippines shall assist
infacilitating transit or
temporary access by
United States forces to
public land and facilities
(including roads, ports, and
airfields), including those
owned or controlled by local
governments, and to other
land and facilities (including
roads, ports, and airfields).

Ninth, under EDCA, the U.S. no longer has the right, power,
and authority to construct, install, maintain, and employ any
type of facility, weapon, substance, device, vessel or vehicle,
or system unlike in the old treaty. EDCA merely grants the
U.S., through bilateral security mechanisms, the authority to
undertake construction, alteration, or improvements on the
Philippine-owned Agreed Locations.
1947 MBA

1947 MBA, Art. III(2)(b):

EDCA, Art. 111(2):

Such rights, power and

authority shall include, inter

When requested, the

Designated Authority of the

Philippines shall assist

infacilitating 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).

1947 MBA, Art. III(2)(e):

EDCA

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, ooperational
control of Agreed Locations
for construction activities
and authority to undertake
such activities on, and
make alterations and
improvements to, Agreed
Locations. United States
forces shall consult on
issues regarding such
construction, alterations, and
improvements based on the
Parties' shared intent that
the technical requirements
and construction standards
of any such projects
undertaken by or on behalf
of United States forces
should be consistent with the
requirements and standards
of both Parties.

Tenth, EDCA does not allow the U.S. to acquire, by

condemnation or expropriation proceedings, real property
belonging to any private person. The old military bases
agreement gave this right to the U.S. as seen
below:chanRoblesvirtualLawlibrary
1947 MBA

1947 MBA, Art. XXII(1):

Whenever it is necessary
to acquire by
condemnation or
expropriation proceedings
real property belonging to
any private persons,
associations or corporations
located in bases named in
Annex A and Annex B in
order to carry out the
purposes of this Agreement,
the Philippines will institute
and prosecute such
condemnation or
expropriation proceedings in
accordance with the laws of
the Philippines. The United
States agrees to reimburse
the Philippines for all the
reasonable expenses,
damages and costs thereby
incurred, including the value
of the property as
determined by the Court. In
addition, subject to the
mutual agreement of the two

EDCA

No equivalent provision.

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(1):

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 thatno objection
will be made to their travel
to the Philippines as nonimmigrants.

1. "United States
personnel" means United
States military and civilian
personnel temporarily in the
territory of the Philippines in
connection with activities
approved by the
Philippines, as those terms
are defined in the VFA.
xxxx
3. "United States
contractors" means
companies and firms, and
their employees, under
contract or subcontract to or
on behalf of the United
States Department of
Defense. United States
contractors are not
included as part of
the definition ofUnited
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:chanRoblesvirtualLawlibrary

1947 MBA

1947 MBA, Art. XIII(1)(a):

EDCA

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
personwithin 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.

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.
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.

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

1947 MBA, Art. XVIII(1):

It is mutually agreed that
the United States shall
have the right to establish
on bases, free of all
licenses; fees; sales,
excise or other taxes, or
imposts; Government
agencies, including
concessions, such as sales
commissaries andpost
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.

EDCA

No equivalent provision.

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:chanRoblesvirtualLawlibrary
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,
Tarlac329cralawlawlibrary
The Bases Conversion and Development Act of 1992
described its coverage in its Declaration of
Policies:chanRoblesvirtualLawlibrary
Sec. 2. Declaration of Policies. It is hereby declared the
policy of the Government to accelerate the sound and
balanced conversion into alternative productive uses of the
Clark and Subic military reservations and their extensions
(John Hay Station, Wallace Air Station, O'Donnell
Transmitter Station, San Miguel Naval Communications
Station and Capas Relay Station), to raise funds by the sale
of portions of Metro Manila military camps, and to apply said
funds as provided herein for the development and
conversion to productive civilian use of the lands covered
under the 1947 Military Bases Agreement between the

Philippines and the United States of America, as

amended. 330cralawlawlibrary
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.332cralawlawlibrary
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
cralawlawlibrary
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 REGALADO334
xxxx
We have been regaled here by those who favor the adoption
of the anti-bases provisions with what purports to be an
objective presentation of the historical background of the
military bases in the Philippines. Care appears, however, to
have been taken to underscore the inequity in their
inception as well as their implementation, as to seriously
reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after
World War II are quoted in support of the proposition on
neutrality; regrettably, the implication is that the same
remains valid today, as if the world and international activity
stood still for the last 40 years.
We have been given inspired lectures on the effect of
the presence of the military bases on our sovereignty
whether in its legal or political sense is not clear and
the theory that any country with foreign bases in its
territory cannot claim to be fully sovereign or
completely independent. I was not aware that the concepts
of sovereignty and independence have now assumed the
totality principle, such that a willing assumption of some
delimitations in the exercise of some aspects thereof would
put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of 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
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

xxx 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

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 SUAREZ337

SPEECH OF COMMISSIONER BACANI342

MR. SUAREZ: Thank you, Madam President.

xxxx

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:chanRoblesvirtualLawlibrary

xxx Hence, the remedy to prostitution does not seem to

be primarily to remove the bases because even if the
bases are removed, the girls mired in poverty will look for
their clientele elsewhere. The remedy to the problem of
prostitution lies primarily elsewhere in an alert and
concerned citizenry, a healthy economy and a sound
education in values.343

1. That every nation should be free to shape its own

destiny without outside interference;
2. That no lasting peace and no true sovereignty would
ever be achieved so long as there are foreign military forces
in our country;
3. That the presence of foreign military bases deprives us
of the very substance of national sovereignty and this is
a constant source of national embarrassment and an insult
to our national dignity and self- respect as a nation;
4. That these foreign military bases unnecessarily expose
our country to devastating nuclear attacks;
5. That these foreign military bases create social problems
and are designed to perpetuate the strangle-hold of United
States interests in our national economy and development;
6. That the extraterritorial rights enjoyed by these foreign
bases operate to deprive our country of jurisdiction over
civil and criminal offensescommitted within our own
national territory and against Filipinos;
7. That the bases agreements are colonial impositions and
dictations upon our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all
the bases agreements are null and void ab initio, especially
because they did not count the sovereign consent and will of
the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission
could accommodate the provisions I have cited, what is our
objection to include in our Constitution a matter as priceless
as the nationalist values we cherish? A matter of the
gravest concern for the safety and survival of this
nation indeed deserves a place in our Constitution.

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
SPEECH OF COMMISSIONER TADEO354

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.
xxxx
x x x The United States bases, therefore, are springboards
for intervention in our own internal affairs and in the
affairs of other nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should
safeguard its fundamental freedoms which should logically
be declared in black and white in our fundamental law of the
land the Constitution. Let us express our desire for
national sovereignty so we may be able to achieve
national self-determination. Let us express our desire for
neutrality so that we may be able to follow active nonaligned
independent foreign policies. Let us express our desire for
peace and a nuclear-free zone so we may be able to pursue
a healthy and tranquil existence, to have peace that is
autonomous and not imposed.353

Para sa magbubukid, ano ba ang kahulugan ng U.S.

military bases? Para sa magbubukid, ang kahulugan nito
ay pagkaalipin. Para sa magbubukid, ang pananatili
ng U.S. military bases ay tinik sa dlbdib ng sambayanang
Pilipinong patuloy na nakabaon. Para sa sambayanang
magbubukid, ang ibig sabihin ng U.S. military
bases ay batong pabigat na patuloy na pinapasan ng
sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang
nagdudumilat na katotohanan ng patuloy na paggahasa
ng imperyalistang Estados Unidos sa ating Inang Bayan
economically, politically and culturally. Para sa
sambayanang magbubukid. ang U.S. military
bases ay kasingkahulugan ng nuclear weapon ang
kahulugan ay magneto ng isang nuclear war. Para sa
sambayanang magbubukid, ang kahulugan ng U.S.
military bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves
from the instruments of domination and subservience has
clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to
declare my support for the committee's position to enshrine
in the Constitution a fundamental principle forbidding foreign
military bases, troops or facilities in any part of the Philippine
territory as a clear and concrete manifestation of our
inherent right to national self-determination,
independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these
attributes of genuine nationhood to the social cost of
allowing foreign countries to maintain military bases in our
country. Previous speakers have dwelt on this subject, either
to highlight its importance in relation to the other issues or to
gloss over its significance and make 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:chanRoblesvirtualLawlibrary
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.

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

xxxx
Eighth, the utter failure of this forum to view the issue of
foreign military bases as essentially a question of
sovereignty which does not require in-depth studies or
analyses and which this forum has, as a constituent
assembly drafting a constitution, the expertise and capacity
to decide on except that it lacks the political will that brought
it to existence and now engages in an elaborate scheme of
buck-passing.
xxxx
Without any doubt we can establish a new social order in our
country, if we reclaim, restore, uphold and defend our
national sovereignty. National sovereignty is what the
military bases issue is all about. It is only the sovereign
people exercising their national sovereignty who can design
an independent course and take full control of their national
destiny.359
SPEECH OF COMMISSIONER PADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee
report, specifically Sections 3 and 4 on neutrality, nuclear
and bases-free country, some views stress sovereignty of
the Republic and even invoke survival of the Filipino
nation and people.361
REBUTTAL OF COMMISSIONER 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
x x x Mr. Presiding Officer, it is not necessary for us to
possess expertise to know that the so-called RP-US Bases
Agreement will expire in 1991, that itinfringes 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)cralawlawlibrary

Very clearly, much of the opposition to the U.S. bases at the

time of the Constitution's drafting was aimed at asserting
Philippine independence from the U.S., as well as control
over our country's territory and military.
Under the Civil Code, there are several aspects of control
exercised over property.
Property is classified as private or public.365 It is public if
"intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and others of similar character[,]" or
"[t]hose which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth."366
Quite clearly, the Agreed Locations are contained within a
property for public use, be it within a government military
camp or property that belongs to the Philippines.
Once ownership is established, then the rights of ownership
flow freely. Article 428 of the Civil Code provides that "[t]he
owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law." Moreover,
the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the
owner of property, even against those who hold the property.
Possession, after all, merely raises a disputable presumption
of ownership, which can be contested through normal
judicial processes.367
In this case, EDCA explicitly provides that ownership of the
Agreed Locations remains with the Philippine
government.368 What U.S. personnel have a right to, pending
mutual agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and
use is consistent with the Civil Code, since the owner may
dispose of the property in whatever way deemed fit, subject
to the limits of the law. So long as the right of ownership
itself is not transferred, then whatever rights are transmitted
by agreement does not completely divest the owner of the
rights over the property, but may only limit them in
accordance with law.
Hence, even control over the property is something that an
owner may transmit freely. This act does not translate into

the full transfer of ownership, but only of certain rights.

In Roman Catholic Apostolic Administrator of Davao, Inc. v.
Land Registration Commission, we stated that the
constitutional proscription on property ownership is not
violated despite the foreign national's control over the
property.370
EDCA, in respect of its provisions on Agreed Locations, is
essentially a contract of use and access. Under its pertinent
provisions, it is the Designated Authority of the Philippines
that shall, when requested, assist in facilitating transit or
access to public land and facilities.371 The activities carried
out within these locations are subject to agreement as
authorized by the Philippine government.372 Granting the
U.S. operational control over these locations is likewise
subject to EDCA's security mechanisms, which are bilateral
procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or
a duly designated representative is given access to the
Agreed Locations.374
To our mind, these provisions do not raise the spectre of
U.S. control, which was so feared by the Constitutional
Commission. In fact, they seem to have been the product of
deliberate negotiation from the point of view of the Philippine
government, which balanced constitutional restrictions on
foreign military bases and facilities against the security
needs of the country. In the 1947 MBA, the U.S. forces had
"the right, power and authority x x x to construct (including
dredging and filling), operate, maintain, utilize, occupy,
garrison and control the bases."375 No similarly explicit
provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of
foreign military facilities and bases has been raised by the
present Constitution. Section 25 is explicit that foreign
military bases, troops, or facilities shall not be allowed in the
Philippines, except under a treaty duly concurred in by the
Senate. Merely stating that the Philippines would retain
ownership would do violence to the constitutional
requirement if the Agreed Locations were simply to become
a less obvious manifestation of the U.S. bases that were
rejected in 1991.
When debates took place over the military provisions of the
Constitution, the committee rejected a specific provision
proposed by Commissioner Sarmiento. The discussion
illuminates and provides context to the 1986 Constitutional
Commission's vision of control and independence from the
U.S., to wit:chanRoblesvirtualLawlibrary
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 selfreliant.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)cralawlawlibrary
Commissioner Sarmiento proposed a motherhood statement
in the 1987 Constitution that would assert "independent" and
"self-reliant" armed forces. This proposal was rejected by
the committee, however. As Commissioner De Castro
asserted, the involvement of the Philippine military with
the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the
times: that the limited resources of the Philippines and the
current insurgency at that time necessitated a strong military
relationship with the U.S. He said that the U.S. would not in
any way control the Philippine military despite this
relationship and the fact that the former would furnish
military hardware or extend military assistance and training
to our military. Rather, he claimed that the proposal was in
compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my
speech on U.S. military bases on 12 September 1986,1
spoke on the self-reliance policy of the armed forces.
However, due to very limited resources, the only thing we
could do is manufacture small arms ammunition. We cannot
blame the armed forces. We have to blame the whole
Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces selfreliant. 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)cralawlawlibrary
This logic was accepted in Taada v. Angara, in which the

Court ruled that independence does not mean the absence

of foreign participation:chanRoblesvirtualLawlibrary
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)
cralawlawlibrary
The heart of the constitutional restriction on foreign military
facilities and bases is therefore the assertion of
independence from the U.S. and other foreign powers, as
independence is exhibited by the degree of foreign control
exerted over these areas. The essence of that independence
is self-governance and self-control.379 Independence itself is
"[t]he state or condition of being free from dependence,
subjection, or control."380
Petitioners assert that EDCA provides the U.S. extensive
control and authority over Philippine facilities and locations,
such that the agreement effectively violates Section 25 of the
1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to
act as necessary for "operational control and defense." The
term "operational control" has led petitioners to regard U.S.
control over the Agreed Locations as unqualified and,
therefore, total.382 Petitioners contend that the word "their"
refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted
below:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
A basic textual construction would show that the word "their,"
as understood above, is a possessive pronoun for the
subject "they," a third-person personal pronoun in plural
form. Thus, "their" cannot be used for a non-personal subject
such as "Agreed Locations." The simple grammatical
conclusion is that "their" refers to the previous third-person
plural noun, which is "United States forces." This conclusion
is in line with the definition of operational control.
a.

U.S. operational control as the

exercise of authority over U.S.
personnel, and not over the
Agreed Locations

Operational control, as cited by both petitioner and

respondents, is a military term referring to
[t]he authority to perform those functions of command over
subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating
objective, and giving authoritative direction necessary to
accomplish the mission.383cralawlawlibrary
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:384chanroblesvirtuallawlibrary
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.
cralawlawlibrary
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-a-vis

effective command and control

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

provision.390
For these reasons, petitioners argue that the "operational
control" in EDCA is the "effective command and control" in
the 1947 MBA.391 In their Memorandum, they distinguish
effective command and control from operational control in
U.S. parlance.392 Citing the Doctrine for the Armed Forces of
the United States, Joint Publication 1, "command and control
(C2)" is defined as "the exercise of authority and direction by
a properly designated commander over assigned and
attached forces in the accomplishment of the mission x x
x."393 Operational control, on the other hand, refers to
"[tjhose functions of command over assigned forces
involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the
overall control of assigned resources, and the full
authoritative direction necessary to accomplish the
mission."394
Two things demonstrate the errors in petitioners' line of
argument.

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.cralawlawlibrary
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

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.

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.

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:398chanroblesvirtuallawlibrary

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

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."cralawlawlibrary
Operational control is defined
thus:399chanroblesvirtuallawlibrary
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

c.

Limited operational control

over the Agreed Locations
only for construction
activitites

cralawlawlibrary

Despite this grant of operational control to the U.S., it must

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

rights to diplomatic agents,405 which is a waiver of control on

a limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the
framers of the Constitution: that the Philippines must retain
sovereignty and jurisdiction over its territory.
ii.

Second standard: Philippine

sovereignty and applicable law

cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
From the text of EDCA itself, Agreed Locations are territories
of the Philippines that the U.S. forces are allowed to access
and use.408 By withholding ownership of these areas and
retaining unrestricted access to them, the government
asserts sovereignty over its territory. That sovereignty exists
so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for
security with respect to the Agreed Locations.410 Hence,
Philippine law remains in force therein, and it cannot be said
that jurisdiction has been transferred to the U.S. Even the
previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated
with Philippine authorities.411
Jurisprudence bears out the fact that even under the former
legal regime of the MBA, Philippine laws continue to be in
force within the bases.412 The difference between then and
now is that EDCA retains the primary jurisdiction of the
Philippines over the security of the Agreed Locations, an
important provision that gives it actual control over those
locations. Previously, it was the provost marshal of the U.S.
who kept the peace and enforced Philippine law in the
bases. In this instance, Philippine forces act as peace
officers, in stark contrast to the 1947 MBA provisions on
jurisdiction.413chanroblesvirtuallawlibrary

iii.

Third standard: must respect

national security and territorial
integrity

cralawlawlibrary
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.414cralawlawlibrary
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 selfdefence.
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 ofa building or person is presumed to be protected,
unless proven otherwise.427 Moreover, the principle of
distinction requires combatants in an aimed conflict to
distinguish between lawful targets428 and protected
targets.429 In an actual armed conflict between the U.S. and a
third state, the Agreed Locations cannot be considered U.S.
territory, since ownership of territory even in times of armed
conflict does not change.430
Hence, any armed attack by forces of a third state against an
Agreed Location can only be legitimate under international
humanitarian law if it is against a bona fide U.S. military
base, facility, or installation that directly contributes to the
military effort of the U.S. Moreover, the third state's forces
must take all measures to ensure that they have complied
with the principle of distinction (between combatants and
non-combatants).
There is, then, ample legal protection for the Philippines
under international law that would ensure its territorial
integrity and national security in the event an Agreed
Location is subjected to attack. As EDCA stands, it does not
create the situation so feared by petitioners - one in which
the Philippines, while not participating in an armed conflict,
would be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the
wisdom of allowing the presence of U.S. personnel within
our territory and is therefore outside the scope of judicial
review.
Evidently, the concept of giving foreign troops access to
"agreed" locations, areas, or facilities within the military base
of another sovereign state is nothing new on the
international plane. In fact, this arrangement has been used
as the framework for several defense cooperation
agreements, such as in the
following:chanRoblesvirtualLawlibrary
1.

2006 U.S.-Bulgaria Defense Cooperation

Agreement432

2.

2009 U.S.-Colombia Defense Cooperation

Agreement433

3.

2009 U.S.-Poland Status of Forces Agreement434

4.

2014 U.S.-Australia Force Posture Agreement435

5.

2014 U.S.-Afghanistan Security and Defense

Cooperation Agreement436

cralawlawlibrary
In all of these arrangements, the host state grants U.S.
forces access to their military bases.437 That access is
without rental or similar costs to the U.S.438 Further, U.S.
forces are allowed to undertake construction activities in,
and make alterations and improvements to, the agreed
locations, facilities, or areas.439 As in EDCA, the host states
retain ownership and jurisdiction over the said bases. 440
In fact, some of the host states in these agreements give
specific military-related rights to the U.S. For example, under
Article IV(1) of the U.S.-Bulgaria Defense Cooperation
Agreement, "the United States forces x x x are authorized
access to and may use agreed facilities and areas x x x for
staging and deploying offerees and materiel, with the
purpose of conducting xxx contingency operations and other
missions, including those undertaken in the framework of the
North Atlantic Treaty." In some of these agreements, host
countries allow U.S. forces to construct facilities for the
latter's exclusive use.441
Troop billeting, including construction of temporary
structures, is nothing new. In Lim v. Executive Secretary, the
Court already upheld the Terms of Reference of Balikatan
02-1, which authorized U.S. forces to set up "[t]emporary
structures such as those for troop billeting, classroom
instruction and messing xxx during the Exercise." Similar
provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially
executive agreements that implement the VFA, the MDT, and
the 1953 Military Assistance Agreement. These executive
agreements similarly tackle the "reciprocal provision of
logistic support, supplies, and services,"442 which include
"[b]illeting, x x x operations support (and construction and
use of temporary structures incident to operations support),
training services, x x x storage services, x x x during an
approved activity."443 These logistic supplies, support, and
services include temporary use of "nonlethal items of military
equipment which are not designated as significant military
equipment on the U.S. Munitions List, during an approved
activity."444 The first Mutual Logistics Support Agreement has
lapsed, while the second one has been extended until 2017
without any formal objection before this Court from the
Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are
analogous to those in the aforementioned executive
agreements. Instead of authorizing the building of temporary
structures as previous agreements have done, EDCA
authorizes the U.S. to build permanent structures or alter or
improve existing ones for, and to be owned by, the
Philippines.445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly
constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed
to use facilities and areas for "training; x x x; support and
related activities; x x x; temporary accommodation of

personnel; communications" and agreed activities.447

Concerns on national security problems that arise from
foreign military equipment being present in the Philippines
must likewise be contextualized. Most significantly, the VFA
already authorizes the presence of U.S. military
equipment in the country. Article VII of the VFA already
authorizes the U.S. to import into or acquire in the
Philippines "equipment, materials, supplies, and other
property" that will be used "in connection with activities"
contemplated therein. The same section also recognizes that
"[t]itle to such property shall remain" with the US and that
they have the discretion to "remove such property from the
Philippines at any time."
There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of "defense equipment, supplies,
and materiel,"448 since these are sanctioned in the VFA. In
fact, the two countries have already entered into various
implementing agreements in the past that are comparable to
the present one. The Balikatan 02-1 Terms of Reference
mentioned in Lim v. Executive Secretary specifically
recognizes that Philippine and U.S. forces "may share x x x
in the use of their resources, equipment and other assets."
Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services,
including the "construction and use of temporary structures
incident to operations support" and "storage services" during
approved activities.449 These logistic supplies, support, and
services include the "temporary use of xxx nonlethal items of
military equipment which are not designated as significant
military equipment on the U.S. Munitions List, during an
approved activity."450 Those activities include "combined
exercises and training, operations and other deployments"
and "cooperative efforts, such as humanitarian assistance,
disaster relief and rescue operations, and maritime antipollution 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

say that the initial impression of the facility adverted to does

appear to be one of those that require a public franchise by
way of congressional action under Section 11, Article XII of
the Constitution. As respondents submit, however, the
system referred to in the agreement does not provide
telecommunications services to the public for
compensation.454 It is clear from Article VII(2) of EDCA that
the telecommunication system is solely for the use of the
U.S. and not the public in general, and that this system will
not interfere with that which local operators use.
Consequently, a public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons
within Philippine territory is entirely speculative. It is
noteworthy that the agreement in fact specifies that the
prepositioned materiel shall not include nuclear
weapons.455 Petitioners argue that only prepositioned nuclear
weapons are prohibited by EDCA; and that, therefore, the
U.S. would insidiously bring nuclear weapons to Philippine
territory.456 The general prohibition on nuclear weapons,
whether prepositioned or not, is already expressed in the
1987 Constitution.457 It would be unnecessary or superfluous
to include all prohibitions already in the Constitution or in the
law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax
exemption, which under the law must originate from
Congress. This allegation ignores jurisprudence on the
government's assumption of tax liability. EDCA simply states
that the taxes on the use of water, electricity, and public
utilities are for the account of the Philippine
Government.458 This provision creates a situation in which a
contracting party assumes the tax liability of the
other.459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and
unenforceable stipulations on the assumption of tax liability.
Afterwards, we concluded that an enforceable assumption of
tax liability requires the party assuming the liability to have
actual interest in the property taxed.460 This rule applies to
EDCA, since the Philippine Government stands to benefit
not only from the structures to be built thereon or improved,
but also from the joint training with U.S. forces, disaster
preparation, and the preferential use of Philippine
suppliers.461 Hence, the provision on the assumption of tax
liability does not constitute a tax exemption as petitioners
have posited.
Additional issues were raised by petitioners, all relating
principally to provisions already sufficiently addressed
above. This Court takes this occasion to emphasize that the
agreement has been construed herein as to absolutely
disauthorize the violation of the Constitution or any
applicable statute. On the contrary, the applicability of
Philippine law is explicit in EDCA.
EPILOGUE

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

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.chanroblesvirtuallawlibrary