SAGUISAG VS OCHOA

Refer to previous digest for facts

Issue: Can the President enter into an executive agreement, instead of a treaty,
insofar as binding the Philippines to the EDCA?

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

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

(a) All cases in which the constitutionality or

validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. (Emphases supplied)

Issue: How does the constitution limit the foreign relations power of the
President?

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

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

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

Section 21 and 25 should be read as limitations to the President’s executive function in

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

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

The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered into executive agreements covering such
subjects as commercial and consular relations, most favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement
of claims. The validity of this has never been seriously questioned by our Courts. Agreements
with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . .
. International agreements involving political issues or changes of national policy and
those involving international agreements of a permanent character usually take the form
of treaties. But international agreements embodying adjustments of detail, carrying out
well established national policies and traditions and those involving arrangements of a
more or less temporary nature usually take the form of executive agreements.

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

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

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

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

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

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of

"executive agreements" and that would make unnecessary any explicit proviso on the
matter.