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1. Bayan v. Zamora (RK) [G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP
TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP
ELMER BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG
MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER,
petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN
AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO
FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO
BIAZON, and SENATOR FRANCISCO TATAD, respondents.
G.R. No. 138572. October 10, 2000] PHILIPPINE CONSTITUTION
ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG,
CAMILO L. SABIO, AND RAMON
A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as
Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National
Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents
[G.R. No. 138587. October 10, 2000] TEOFISTO T. GUINGONA, JR.,
RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs. JOSEPH E.
ESTRADA, RONALDO B. ZAMORA,
DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN,
FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON,
respondents
[G.R. No. 138680. October 10, 2000] INTEGRATED BAR OF THE
PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners, vs. JOSEPH EJERCITO
ESTRADA, in his capacity as President, Republic of the
Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary
of Foreign Affairs, respondents.[
G.R. No. 138698. October 10, 2000] JOVITO R. SALONGA, WIGBERTO
TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO SIMBULAN, PABLITO V.
SANIDAD, MA. SOCORRO I.
DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA
JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN,
SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER
PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA),
respondents.
BUENA, J.: FACTS: Brief History:
March 14, 1947, US and PH forged the RP-US Military Bases
Agreement August 30, 1951, US and PH entered into a Mutual Defense
Treaty RP-US Military Bases Agreement expired in 1991\
o the PH Senate rejected the proposed RP-US Treaty of
Friendship, Cooperation and Security in Sept 16, 1991 which would
have extended presence of US military bases in the PH.
July 18, 1997, US (represented by Kurt Campbell, Defense Deputy
Assistant Secretary) and PH (Rodolfo Severino Jr., DFA
undersecretary) met to discuss the possible elements of the
Visiting Forces Agreement (VFA)
This resulted to a series of conferences and negotiations which
culminated on January 12 and 13, 1998. Then President Fidel Ramos
approved the VFA, which was respectively signed by DFA Secretary
Domingo Siazon and US Ambassador Thomas Hubbard
October 5, 1998, President Joseph Estrada, through DFA
Secretary, ratified the VFA. October 6, 1998, President transmitted
to the Senate for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The VFA was
referred to the committee on National Defense and Security for
recommendation and hearing
May 3, 1999, the committee submitted Propose Senate Resolution
No 443 recommending concurrence of the Senate to the VFA
May 27, 1999, proposed Senate Resolution No. 443 was approved by
the Senate via 2/3 vote of its members
June 1, 1999, the VFA officially entered into force after
Exchange of Notes between Secretary Siazon and US Ambassador
Hubbard. * see case for full text of VFA
The Present Action
Via these consolidated petitions for certiorari and prohibition,
petitioners - as legislators, non-governmental organizations,
citizens and taxpayers - assail the constitutionality of the VFA
and impute to herein respondents grave abuse of
discretion in ratifying the agreement. ISSUES*:
1. Do petitioners have legal standing as concerned citizens,
taxpayers, or legislators to question the constitutionality of the
VFA?
2. Is the VFA governed by the provisions of Section 21, Article
VII or of Section 25, Article XVIII of the Constitution?
3. Does the VFA constitute an abdication of Philippine
sovereignty? a. Are Philippine courts deprived of their
jurisdiction to hear and try offenses committed by US military
personnel? b. Is the Supreme Court deprived of its jurisdiction
over offenses punishable by reclusion perpetua or higher?
4. Does the VFA violate: a. the equal protection clause under
Section 1, Article III of the Constitution? b. the Prohibition
against nuclear weapons under Article II, Section 8? c. Section 28
(4), Article VI of the Constitution granting the exemption from
taxes and duties for the equipment, materials supplies and other
properties imported into or acquired in the Philippines by, or on
behalf, of the US Armed Forces?
HELD/RATIO: 1. Petitioners Bayan Muna, etc. have no standing. A
party bringing a suit challenging the Constitutionality of a law
must show not only
that the law is invalid, but that he has sustained or is in
immediate danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in some
indefinite way. Petitioners have failed to show that they are in
any danger of direct injury as a result of the VFA.
As taxpayers, they have failed to establish that the VFA
involves the exercise by Congress of its taxing or spending powers.
A taxpayers suit refers to a case where the act complained of
directly involves the illegal disbursement of public funds
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derived from taxation. Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by
taxation and that he will sustain a direct injury as a result of
the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all
members of the public. Clearly, inasmuch as no public funds raised
by taxation are involved in this case, and in the absence of any
allegation by petitioners that public funds are being misspent or
illegally expended, petitioners, as taxpayers, have no legal
standing to assail the legality of the VFA.
Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do
not possess the requisite locus standi to sue. In the absence of a
clear showing of any direct injury to their person or to the
institution to which they belong, they cannot sue. The Integrated
Bar of the Philippines (IBP) is also stripped of standing in these
cases. The IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors
authorizing its National President to commence the present
action.
Notwithstanding, in view of the paramount importance and the
constitutional significance of the issues raised, the Court may
brush aside the procedural barrier and takes cognizance of the
petitions.
2. APPLICABLE CONSTITUTIONAL PROVISION
Petitioners argue that Section 25, Article XVIII is applicable
considering that the
VFA has for its subject the presence of foreign military troops
in the Philippines. Respondents, on the contrary, maintain that
Section 21, Article VII should apply
inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States
personnel engaged in joint military exercises.
o Section 21, Article VII-- 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.
o Section 25, Article XVIII 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.
SC: Section 25, Art XVIII, not section 21, Art. VII, applies, as
the VFA involves the presence of foreign military troops in the
Philippines.
o The Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements.
Section 21, Article VII reads: [n]o treaty or international
agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate. Section 25,
Article XVIII, provides:[a]fter 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.
o Section 21, Article VII deals with treaties or international
agreements in general, in which case, the concurrence of at least
two-thirds (2/3) of all the Members of the Senate is required to
make the treaty valid and binding to the Philippines. This
provision lays down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or particular designation
or appellation, requires the concurrence of the Senate to be valid
and effective.
o In contrast, Section 25, Article XVIII is a special provision
that applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the
Philippines. Sec 25 further requires that foreign military bases,
troops, or facilities may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a
majority of the votes cast in a national referendum held for that
purpose if so required by Congress, and recognized as such by the
other contracting state.
o On the whole, the VFA is an agreement which defines the
treatment of US troops visiting the Philippines. It provides for
the guidelines to govern such visits of military personnel, and
further defines the rights of the US and RP government in the
matter of criminal jurisdiction, movement of vessel and aircraft,
import and export of equipment, materials and supplies.
o Undoubtedly, Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases, troops, or
facilities, should apply in the instant case. To a certain extent,
however, the provisions of Section 21, Article VII will find
applicability with regard to determining
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the number of votes required to obtain the valid concurrence of
the Senate.
o It is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that there
is no permanent placing of structure for the establishment of a
military base. The Constitution makes no distinction between
transient and permanent. We find nothing in Section 25, Article
XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines. When no distinction is made
by law; the Court should not distinguish. We do not subscribe to
the argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops and
facilities, are involved in the VFA. The proscription covers
foreign military bases, troops, or facilities. Stated differently,
this prohibition is not limited to the entry of troops and
facilities without any foreign bases being established. The clause
does not refer to foreign military bases, troops, or facilities
collectively but treats them as separate and independent subjects,
such that three different situations are contemplated a military
treaty the subject of which could be either (a) foreign bases, (b)
foreign troops, or (c) foreign facilities any of the three standing
alone places it under the coverage of Section 25, Article
XVIII.
3. WERE REQUIRMENTS OF SEC 25, ART XVIII COMPLIED WHEN SENATE
GAVE CONCURRENCE TO VFA? YES
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following
conditions are sufficiently met: (a) it must be under a treaty; (b)
the treaty must be duly concurred in by the Senate and, when so
required by Congress, ratified by a majority of the votes cast by
the people in a national referendum; and (c) recognized as a treaty
by the other contracting state. There is no dispute as to the
presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in
accordance with the Constitution, as there were at least 16
Senators that concurred.
As to condition (c), the Court held that the phrase recognized
as a treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the US to submit
the VFA to the US Senate for concurrence pursuant to its
Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case
the significance thus attached to them prevails. Its language
should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats
the VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty. To be sure,
as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a
treaty.
a. A treaty, as defined by the Vienna Convention on the Law of
Treaties, is an international instrument concluded between States
in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments, and
whatever its particular designation. There are many other terms
used for a treaty or international agreement, some of which are:
act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements
included under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish little
more than mere description.
b. Article 2(2) of the Vienna Convention provides that the
provisions of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms, or to
the meanings which may be given to them in the internal law of the
State. Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect upon
states concerned, as long as the negotiating functionaries have
remained within their powers International law continues to make no
distinction between treaties and executive agreements: they are
equally binding obligations upon nations.
The records reveal that the US Government, through Ambassador
Hubbard, has stated that the US has fully committed to living up to
the terms of the VFA. For as long as the US accepts or acknowledges
the VFA as a treaty, and binds itself further to comply with its
treaty obligations, there is indeed compliance with the mandate of
the Constitution.
Worth stressing too, is that the ratification by the President
of the VFA, and the concurrence of the Senate, should be taken as a
clear and unequivocal expression of our nations consent to be bound
by said treaty, with the concomitant duty to uphold the obligations
and responsibilities embodied thereunder. Ratification is generally
held to be an executive act, undertaken by the head of the state,
through which the formal acceptance of the treaty is proclaimed. A
State may provide in its domestic legislation the process of
ratification of a treaty. In our jurisdiction, the power to ratify
is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification.
With the ratification of the VFA it now becomes obligatory and
incumbent on our part, under principles of international law (pacta
sunt servanda), to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II declares that the
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Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity
with all nations.
4. ON GRAVE ABUSE OF DISCRETION As regards the power to enter
into treaties or international agreements, the
Constitution vests the same in the President, subject only to
the concurrence of at least two-thirds vote of all the members of
the Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade it
onsequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and
entering into a treaty and those necessary or incidental to the
exercise of such principal acts - squarely fall within the sphere
of his constitutional powers and thus, may not be validly struck
down, much less calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII,
instead of Section 25 of Article XVIII of the Constitution, still,
the President may not be faulted or scarred, much less be adjudged
guilty of committing an abuse of discretion in some patent, gross,
and capricious manner.
Corollarily, the Senate, in the exercise of its discretion and
acting within the limits of such power, may not be similarly
faulted for having simply performed a task conferred and sanctioned
by no less than the fundamental law.
For the role of the Senate in relation to treaties is
essentially legislative in character;[57] the Senate, as an
independent body possessed of its own erudite mind, has the
prerogative to either accept or reject the proposed agreement, and
whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of the
act.
True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit
and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion
on the part of respondents, this Court- as the final arbiter of
legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and meddle
with such affairs purely executive and legislative in character and
nature.
*Issues as enumerated in the case.
NOTE: SC did not answer issues no. 3a,b, and 4a, b, c
WHEREFORE, in light of the foregoing disquisitions, the instant
petitions are hereby DISMISSED.
SO ORDERED.
2. Lim v. Executive Secretary (RC) Topic: Treaty Interpretation,
examine the Treaties/Laws:
Mutual Defense Treaty (MDT) Bases Agreement Visiting Forces
Agreement (VFA) replaced the Bases Agreement when it expired Vienna
Convention on the Law of Treaties (just Articles 31 and 32, in
ratio part) UN Charter Philippine Constitution
G.R. No. 151445 April 11, 2002 Petitioner: ARTHUR D. LIM and
PAULINO R. ERSANDO, SANLAKAS and PARTIDO NG MANGGAGAWA,
petitioner-intervenors Respondents: HONORABLE EXECUTIVE SECRETARY
as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and
HONORABLE ANGELO REYES in his capacity as Secretary of National
Defense FACTS:
This case involves a petition for certiorari and prohibition as
well as a petition-in-intervention, praying that respondents be
restrained from proceeding with the so-called "Balikatan 02-1" and
that after due notice and hearing, that judgment be rendered
issuing a permanent writ of injunction and/or prohibition against
the deployment of U.S. troops in Basilan and Mindanao for being
illegal and in violation of the Constitution.
Beginning January 2002, personnel from the armed forces of the
United States of America started arriving in Mindanao to take part,
in conjunction with the Philippine military, in "Balikatan 02-1."
These so-called "Balikatan" exercises are the largest combined
training operations involving Filipino and American troops. In
theory, they are a simulation of joint military maneuvers pursuant
to the Mutual Defense Treaty, a bilateral defense agreement entered
into by the Philippines and the United States in 1951.
Prior to 2002, the last "Balikatan" was held in 1995. In the
meantime, the respective governments of the two countries agreed to
hold joint exercises on a reduced scale. The lack of consensus was
eventually cured when the two nations
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concluded the Visiting Forces Agreement (V FA) in 1999. The
entry of American troops into Philippine soil is proximately rooted
in the
international anti-terrorism campaign declared by President
George W. Bush in reaction to the tragic events that occurred on
9/11.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P.
Ersando filed this petition for certiorari and prohibition,
attacking the constitutionality of the joint exercise in their
capacity as citizens, lawyers and taxpayers. They were joined
subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations whose members reside in Zamboanga and Sulu, who filed
a petition-in-intervention on February 11, 2002.
On February 71 2002 the Senate conducted a hearing on the
"Balikatan" exercise wherein Vice-President Teofisto T. Guingona,
Jr., who is concurrently Secretary of Foreign. Affairs, presented
the Draft Terms of Reference (TOR). Five days later, he approved
the TOR, which we quote hereunder: (at end of digest if you want to
look)
ISSUE/HELD: I. W/N petitioners have standing? YES (minor issue
in grey) II. W/N the Balikatan Exercises fall within the purview of
the Visiting Forces Agreement? YES III. W/N VFA sanctions actual
combat? NO RATIO: I. STANDING: YES THEY HAVE STANDING bec. of the
importance of the issue
Anent their locus standi, the Solicitor General argues that
first, they may not file suit in their capacities as, taxpayers
inasmuch as it has not been shown that "Balikatan 02-1 " involves
the exercise of Congress' taxing or spending powers. Second, their
being lawyers does not invest them with sufficient personality to
initiate the case, citing our ruling in Integrated Bar of the
Philippines v. Zamora. Third, Lim and Ersando have failed to
demonstrate the requisite showing of direct personal injury. We
agree.
It is also contended that the petitioners are indulging in
speculation. The Terms of Reference are clear as to the extent and
duration of "Balikatan 02-1," the issues raised by petitioners are
premature, as they are based only on a fear of future violation of
the Terms of Reference. Even petitioners' resort to a special civil
action for certiorari is assailed on the ground that the writ may
only issue on the basis of established facts.
Given the primordial importance of the issue involved, it will
suffice to reiterate our view on this point in a related case:
o In view of the paramount importance and the constitutional
significance
of the issues raised in the petitions, this Court, in the
exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions,
o Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil,
Amusement and Gaming Corporation, where we emphatically held:
Considering however the importance to the public of the case at
bar, and in keeping with the Court's duty, under the 1987
Constitution, to determine whether or not the other branches of the
government have kept themselves within the limits of the
Constitution and the laws that they have not abused the discretion
given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. xxx'
o Kilosbayan vs. Guingona, Jr., this Court ruled that in cases
of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no
direct injury to the party claiming the right of judicial
review.
Primary concern of this case is the INTERPRETATION of the VFA.
II. FALL WITHIN VFA? YES
At any rate, petitioners' concerns on the lack of any specific
regulation on the latitude of activity US personnel may undertake
and the duration of their stay has been addressed in the Terms of
Reference.
The first of these is the Mutual Defense Treaty (MDT, for
brevity). The MDT has been described as the "core" of the defense
relationship between the Philippines and its traditional ally, the
United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint
training with its American counterparts; the "Balikatan" is the
largest such training exercise directly supporting the MDT's
objectives. It is this treaty to which the VFA adverts and the
obligations thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the
decision not to renew it created a vacuum in US-Philippine defense
relations, that is, until it was replaced by the Visiting Forces
Agreement. On October 10, 2000, by a vote of eleven to three, this
Court upheld the validity of the VFA.
The VFA provides the "regulatory mechanism" by which "United
States military and civilian personnel [may visit] temporarily in
the Philippines in connection with activities approved by the
Philippine Government." It is the VFA which gives continued
relevance to the MDT despite the passage of years. Its primary goal
is to facilitate the promotion of optimal cooperation between
American and Philippine military forces in the event of an attack
by a common foe.
The VFA permits United States personnel to engage, on an
impermanent basis, in
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"activities," the exact meaning of which was left undefined.
(MAIN PROBLEM) The expression is ambiguous, permitting a wide scope
of undertakings subject only to the approval of the Philippine
government. The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must
"abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity." All
other activities, in other words, are fair game.
We are not left completely unaided. The Vienna Convention on the
Law of Treaties, which contains provisos governing interpretations
of international agreements, state:
It is clear from the foregoing that the cardinal rule of
interpretation must involve
an examination of the text, which is presumed to verbalize the
parties'
intentions. The Convention likewise dictates what may be used as
aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context.
After studied reflection, it appeared farfetched that the
ambiguity surrounding the meaning of the word .'activities" arose
from accident. In our view, it was deliberately made that way to
give both parties a certain leeway in negotiation. In this manner,
visiting US forces may sojourn in Philippine territory for purposes
other than military. As conceived, the joint exercises may include
training on new techniques of patrol and surveillance to protect
the nation's marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic
action projects such as the building of school houses, medical and
humanitarian missions, and the like.
III. WHAT IS AUTHORIZED BY VFA? No combat!
Granted that "Balikatan 02-1" is permitted under the terms of
the VFA, what may US forces legitimately do in furtherance of their
aim to provide advice, assistance and training in the global effort
against terrorism? Differently phrased, may American troops
actually engage in combat in Philippine territory? The Terms of
Reference are explicit enough. Paragraph 8 of section I stipulates
that US exercise participants may not engage in combat "except in
self-defense."
The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot
reasonably be expected to sit idly while the battle is brought to
their very doorstep. They cannot be expected to pick and choose
their targets for they will not have the luxury of doing so.
The indirect violation is actually petitioners' worry, that in
reality, "Balikatan 02-1 " is actually a war principally conducted
by the United States government, and that the provision on
self-defense serves only as camouflage to conceal the true nature
of the exercise. A clear pronouncement on this matter thereby
becomes crucial.
Neither the MDT nor the VFA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary
proscription stated in the Charter of the United Nations, to
wit:
SECTION 3. INTERPRETATION OF TREATIES Article 31 General rule of
interpretation 1. A treaty shall be interpreted in good faith ill
accordance with the ordinary meaning to be given to the tenus of
the treaty in their context and in the light of its object and
purpose. 2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made between
all the parties in connexion with the conclusion of the treaty; (b)
any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties
as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its
interpretation; (c) any relevant rules of international law
applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended. Article 32 Supplementary
means of interpretation Recourse may be had to supplementary means
of interpretation, including the preparatory work of the treaty and
the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article
31 :
(a) leaves the meaning ambiguous or obscure; or (b) leads to a
result which is manifestly absurd unreasonable.
Article 2 The Organization and its Members, in pursuit of the
Purposes stated in Article 1, shall act in accordance with the
following Principles. xxx xxx xxx xxx 4. All Members shall refrain
in their international relations from the threat or use of force
against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the
United Nations.
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In the same manner, both the Mutual Defense Treaty and the
Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must
be read in the context of the 1987 Constitution. Thus, in the
Declaration of Principles and State Policies, Article II, it is
provided that:
The Constitution also regulates the foreign relations powers of
the Chief Executive
when it provides that "[n]o treaty or international agreement
shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate." Even more pointedly,
the Transitory Provisions state:
The aforequoted provisions betray a marked antipathy towards
foreign military
presence in the country, or of foreign influence in general.
Hence, foreign troops are allowed entry into the Philippines only
by way of direct exception.
A rather recent formulation of the relation of international law
vis-a-vis municipal law was expressed in Philip Morris, Inc. v.
Court of Appeals, to wit:
o xxx Withal, the fact that international law has been made part
of the law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere. Under
the doctrine of incorporation as applied in most countries, rules
of international law are
given a standing equal, not superior, to national legislation.
From the perspective of public international law, a treaty is
favored over municipal
law pursuant to the principle of pacta sunt servanda. Hence,
"[e]very treaty in force is binding upon the parties to it and must
be performed by them in good faith." Further, a party to a treaty
is not allowed to "invoke the provisions of its internal law as
justification for its failure to perform a treaty."
Our Constitution espouses the opposing view. Witness our
jurisdiction as I stated in section 5 of Article VIII:
In Ichong v. Hernandez, we ruled that the provisions of a treaty
are always subject to qualification or amendment by a subsequent
law, or that it is subject to the police power of the State.
In Gonzales v. Hechanova, the Court has ruled our Constitution
authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter
to an act of Congress.
The foregoing premises leave us no doubt that US forces are
prohibited / from engaging in an offensive war on Philippine
territory.
Yet a nagging question remains: are American troops actively
engaged in combat alongside Filipino soldiers under the guise of an
alleged training and assistance exercise? Contrary to what
petitioners would have us do, we cannot take judicial notice of the
events transpiring down south, as reported from the saturation
coverage of the media. As a rule, we do not take cognizance of
newspaper or electronic reports per se, not because of any issue as
to their truth, accuracy, or impartiality, but for the simple
reason that facts must be established in accordance with the rules
of evidence.
It is all too apparent that the determination thereof involves
basically a question of fact. On this point, we must concur with
the Solicitor General that the present subject matter is not a fit
topic for a special civil action for certiorari. We have held in
too many instances that questions of fact are not entertained in
such a remedy. The sole object of the writ is to correct errors of
jurisdiction or grave abuse of discretion: The phrase "grave abuse
of discretion" has a precise meaning in law,
Sec. 25. After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in
a national referendum held for that purpose, and recognized as a
treaty by the other contracting state.
The Supreme Court shall have the following powers: xxx xxx xxx
xxx (2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and order of lower courts in: (A) All cases in which the
constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
xxx xxx xxx xxx SEC. 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations. xxx xxx xxx xxx SEC. 7.
The State shall pursue an independent foreign policy. In its
relations with other states the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and
the right to self- determination. SEC. 8. The Philippines,
consistent with the national interest, adopts and pursues a policy
of freedom from nuclear weapons in the country. xxx xxx xxx xxx
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denoting abuse of discretion "too patent and gross as to amount
to an evasion of a positive duty, or a virtual refusal to perform
the duty enjoined or act in contemplation of law, or where the
power is exercised in an arbitrary and despotic manner by reason of
passion and personal hostility."
In this connection, it will not be amiss to add that the Supreme
Court is not a trier of facts.
From the facts obtaining, we find that the holding of "Balikatan
02-1" joint military exercise has not intruded into that penumbra
of error that would otherwise call for correction on our part. In
other words, respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess of
jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are
hereby DISMISSED without prejudice to the filing of a new petition
sufficient in form and substance in the proper Regional Trial
Court. SO ORDERED. THIS IS THE VFA: I. POLICY LEVEL 1. The Exercise
shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the
provisions of the RP-US Visiting Forces Agreement (VFA). 2. The
conduct of this training Exercise is in accordance with pertinent
United Nations resolutions against global terrorism as understood
by the respective parties. 3. No permanent US basing and support
facilities shall be established. Temporary structures such as those
for troop billeting, classroom instruction and messing may be set
up for use by RP and US Forces during the Exercise. 4. The Exercise
shall be implemented jointly by RP and US Exercise Co-Directors
under the authority of the Chief of Staff, AFP. In no instance will
US Forces operate independently during field training exercises
(FTX). AFP and US Unit Commanders will retain command over their
respective forces under the overall authority of the Exercise
Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX. 5. The exercise shall be
conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and
3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise
Co-Directors to wind up and terminate the Exercise and other
activities within the six month Exercise period. 6. The Exercise is
a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will
be conducted on the Island of Basilan. Further advising, assisting
and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of
the Exercise. 7. Only 160 US Forces organized in 12-man Special
Forces Teams shall be deployed with AFP field, commanders. The US
teams shall remain at the Battalion Headquarters and, when
approved, Company Tactical headquarters where they can observe and
assess the performance of the AFP Forces. 8. US exercise
participants shall not engage in combat, without prejudice to their
right of self-defense. 9. These terms of Reference are for purposes
of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the
Philippines. II. EXERCISE LEVEL 1. TRAINING a. The Exercise shall
involve the conduct of mutual military assisting, advising and
training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat
terrorism. b. At no time shall US Forces operate independently
within RP territory. c. Flight plans of all aircraft involved in
the exercise will comply with the local air traffic regulations. 2.
ADMINISTRATION & LOGISTICS a. RP and US participants shall be
given a country and area briefing at the start of the Exercise.
This briefing shall acquaint US Forces on the culture and
sensitivities of the Filipinos and the provisions of the VF A. The
briefing shall also promote the full cooperation on the part of the
RP and US participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with
their respective laws and regulations, in the use of their
resources, equipment and other assets. They will use their
respective logistics channels. c. Medical evaluation shall be
jointly planned and executed utilizing RP and US assets and
resources. d. Legal liaison officers from each respective party
shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRS a.
Combined RP-US Information Bureaus shall be established at the
Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp
Aguinaldo, Quezon City. b. Local media relations will be the
concern of the AFP and all public affairs guidelines shall be
jointly developed by RP and US Forces. c. Socio-Economic Assistance
Projects shall be planned and executed jointly by RP and US Forces
in accordance with their respective laws and regulations, and in
consultation with community and local government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva
Jean A. Falcon and United States Charge d' Affaires Robert Fitts
signed the Agreed Minutes of the discussion between the
Vice-President and Assistant Secretary Kelly.4
3. Pimentel v. Executive Secretary (JG) TOPIC: Treaty
Ratification; the power to ratify a treaty is vested in the
President, subject to the concurrence of the Senate
Treaties/Laws:
Rome Statute Section 21, Article VII of the 1987 Constitution
Executive Order No. 459 Guidelines in the Negotiation of
International
Agreements and Its Ratification G.R. No.: 158088
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Petitioners: Senator Aquilino Pimentel, Jr., Rep. Etta Rosales,
Philippine Coalition For The Establishment Of The International
Criminal Court, Task Force Detainees Of The Philippines, Families
Of Victims Of Involuntary Disappearances, Bianca Hacintha R. Roque,
Harrison Jacob R. Roque, Ahmed Paglinawan, Ron P. Salo, Leavides G.
Domingo, Edgardo Carlo Vistan, Noel Villaroman, Celeste Cembrano,
Liza Abiera, Jaime Arroyo, Marwil Llasos, Cristina Atendido,
Israfel Fagela, And Romel Bagares, Respondents: Office Of The
Executive Secretary, represented by Hon. Alberto Romulo, and the
Department Of Foreign Affairs, represented by Hon. Blas Ople July
6, 2005 Ponente: Puno, J. FACTS:
The Rome Statute established the International Criminal Court,
which shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal
jurisdictions.
o Its jurisdiction covers the crime of genocide, crimes against
humanity, war crimes and the crime of aggression as defined in the
Statute.
o The Statute was opened for signature by all states in Rome on
July 17, 1998 and had remained open for signature until December
31, 2000 at the United Nations Headquarters in New York.
o The Philippines signed the Statute on December 28, 2000
through Charge d Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations.
o Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states.
Petitioners filed a petition for mandamus to compel the
respondents the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed text of the
treaty to the Senate of the Philippines for ratification for its
concurrence in accordance with Sec. 21, Art. VII of the 1987
Philippine Constitution.
o Section 21, Article VII of the 1987 Constitution provides that
no treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of
the Senate. The 1935 and the 1973 Constitution also required the
concurrence by the legislature to the treaties entered into by the
executive.
Petitioners contention: (not accepted by the SC) o The
ratification of a treaty, under both domestic law and
international
law, is a function of the Senate.
Hence, it is the duty of the executive department to transmit
the signed copy of the Rome Statute to the Senate to allow it to
exercise its discretion with respect to ratification of
treaties.
o The Philippines has a ministerial duty to ratify the Rome
Statute under treaty law and customary international law.
o Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would
defeat the object and purpose of a treaty when they have signed the
treaty prior to ratification unless they have made their intention
clear not to become parties to the treaty.
Respondents contention: o The executive department has no duty
to transmit the Rome Statute to
the Senate for concurrence. ISSUES/HELD: Whether the Executive
Secretary and the Department of Foreign Affairs have a ministerial
duty to transmit to the Senate the copy of the Rome Statute signed
by a member of the Philippine Mission to the United Nations even
without the signature of the President NO
In our system of government, the President, being the head of
state, is the countrys sole representative with foreign nations. As
the chief architect of foreign policy, the President acts as the
countrys mouthpiece with respect to international affairs. Hence,
the President is vested with the authority to deal with foreign
states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making,
the President has the sole authority to negotiate with other
states.
Nonetheless, the Constitution provides a limitation to the
Presidents power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into
by him. o By requiring the concurrence of the legislature in the
treaties entered into by
the President, the Constitution ensures a healthy system of
checks and balance necessary in the nations pursuit of political
maturity and growth.
The court described the treaty-making process, according to
Justice Isagani Cruz book on International Law o The usual steps in
the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of
ratification.
Petitioners equate the signing of the treaty by the Philippine
representative with ratification, which are two separate and
distinct steps in the treaty-making process.
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The signature, performed by the states authorized representative
in the diplomatic mission, is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of
the parties. Ratification, on the other hand, is the formal act
executive in nature, undertaken by the head of the state or of the
government.
Thus, the President has the discretion even after the signing of
the treaty by the Philippine representative whether or not to
ratify the same. The Vienna Convention on the Law of Treaties does
not contemplate to defeat or even restrain this power of the head
of states. If that were so, the requirement of ratification of
treaties would be pointless and futile.
Executive Order No. 459 provides the guidelines in the
negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine
representative, the same shall be transmitted to the Department of
Foreign Affairs. The latter shall then prepare the ratification
papers and forward the signed copy of the treaty to the President
for ratification.
o Section 7 of Executive Order No. 459 reads: Sec. 7. Domestic
Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a
treaty or an executive agreement, or any amendment thereto, shall
be as follows: A. Executive Agreements. i. All executive agreements
shall be transmitted to the Department of Foreign Affairs after
their signing for the preparation of the ratification papers. The
transmittal shall include the highlights of the agreements and the
benefits which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement
by the concerned agency, shall transmit the agreements to the
President of the Philippines for his ratification. The original
signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action. B. Treaties.
i. All treaties, regardless of their designation, shall comply with
the requirements provided in sub-paragraph[s] 1 and 2, item A
(Executive Agreements)
of this Section. In addition, the Department of Foreign Affairs
shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true
copy of the treaties, in such numbers as may be required by the
Senate, together with a certified true copy of the ratification
instrument, shall accompany the submission of the treaties to the
Senate. ii. Upon receipt of the concurrence by the Senate, the
Department of Foreign Affairs shall comply with the provision of
the treaties in effecting their entry into force.
The signature does not signify the final consent of the state to
the treaty. It is the
ratification that binds the state to the provisions thereof.
Under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited only to giving or withholding its
consent, or concurrence, to the ratification. Such power of the
President cannot be encroached by this Court via a writ of mandamus
and the courts have no jurisdiction over actions seeking to enjoin
the President in the performance of his official duties.
Therefore, the court cannot issue the writ of mandamus prayed
for by the petitioners as it is beyond its jurisdiction to compel
the executive branch of the government to transmit the signed text
of Rome Statute to the Senate.
DISPOSITIVE: Petition is dismissed.
4. Sps. Constantino v. Hon. Rosario (CG) G.R. No. 106064 October
13, 2005 TOPIC: Powers of the President to enter into debt-relief
contracts with foreign creditors; Qualified Political Agency
RELEVANT LAWS: Article 7, Section 20 of the Constitution; R.A. No.
245 as amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An
Act Authorizing the Secretary of Finance to Borrow to Meet Public
Expenditures Authorized by Law, and for Other Purposes Petitioners:
Spouses Renato Constantino, Jr. and Lourdes Constantino and their
minor children Renato Redentor, Anna Marika Lissa, Nina Elissa, and
Anna Karmina, Freedom From Debt Coalition, and Filomeno Sta. Ana
III Respondents: Hon. Jose B. Cuisia, in his capacity as Governor
of the Central Bank, Hon.
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Ramon del Rosario, in his capacity as Secretary of Finance, Hon.
Emmanuel V. Pelaez, in his capacity as Philippine Debt Negotiating
Chairman, and the NATIONAL TREASURER Ponente: Tinga, J.
This Petition for Certiorari, Prohibition and Mandamus assails
said contracts which were entered into pursuant to the Philippine
Comprehensive Financing Program for 1992 (Financing Program)
It seeks to enjoin respondents from executing additional
debt-relief contracts pursuant thereto and also urges the Court to
issue an order compelling the Secretary of Justice to institute
criminal and administrative cases against respondents for acts,
which circumvent or negate the provisions Art. XII of the
Constitution
Facts The Financing Program began during the term of former
President Corazon Aquino
to manage the countrys external debt problem through a
negotiation-oriented debt strategy involving cooperation and
negotiation with foreign creditors
Pursuant to this strategy, the Aquino government entered into
six (6) restructuring agreements (1986-1991): 3 with
representatives of foreign creditor governments, and another 3 with
commercial bank creditors
On 28 February 1992, the Philippine Debt Negotiating Team,
chaired by respondent Pelaez, negotiated an agreement with the
countrys Bank Advisory Committee, representing all foreign
commercial bank creditors, on the Financing Program, which
respondents characterized as "a multi-option financing package.
The Program was scheduled to be executed on 24 July 1992 by
respondents in behalf of the Republic.
Petitioners alleged that even prior to the execution of the
Program respondents had already implemented its "buyback component"
when on 15 May 1992, the Philippines bought back P1.26 billion of
external debts pursuant to the Program
The petition sought to enjoin the ratification of the Program,
but the Court did not issue any injunctive relief. Hence, it came
to pass that the Program was signed in London as scheduled.
The petition still has to be resolved though as petitioners seek
the annulment "of any and all acts done by respondents, their
subordinates and any other public officer pursuant to the agreement
and program in question. Even after the signing of the Program,
respondents themselves acknowledged that the remaining principal
objective of the petition is to set aside respondents actions.
Petitioners characterize the Financing Program as a package
offered to the countrys foreign creditors consisting of two
debt-relief options:
o The first option was a cash buyback of portions of the
Philippine foreign debt at a discount.
o The second option allowed creditors to convert existing
Philippine debt instruments into any of three kinds of
bonds/securities (New money bonds w/ 5-yr grace period and 17-yr
maturity, Interest-reduction bonds w/ 25-yr maturity or
Principal-collateralized interest-reduction bonds with 25-yr
maturity)
According to the respondents the Financing Program would cover
about U.S. $5.3 billion of foreign commercial debts and it was
expected to deal comprehensively with the commercial bank debt
problem of the country and pave the way for the countrys access to
capital markets.
They add that the Program carried three basic options from which
foreign bank lenders could choose, namely: to lend money, to
exchange existing restructured Philippine debts with an interest
reduction bond; or to exchange the same Philippine debts with a
principal collateralized interest reduction bond.
Issues/Ruling (1) WON the debt-relief contracts entered into
pursuant to the Financing Programs was beyond the scope of the
powers granted to the President under Section 20, Article VII of
the Constitution NO, the Constitution does not prohibit the
President from so doing, and it is in RA 245
The language of the Constitution is simple and clear as it is
broad. It allows the President to contract and guarantee foreign
loans. It makes no prohibition on the issuance of certain kinds of
loans or distinctions as to which kinds of debt instruments are
more onerous than others.
The plain, clear and unambiguous language of the Constitution
should be construed in a sense that will allow the full exercise of
the power provided therein
The only restriction that the Constitution provides, aside from
the prior concurrence of the Monetary Board, is that the loans must
be subject to limitations provided by law.
In this regard, we note that Republic Act (R.A.) No. 245 as
amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act
Authorizing the Secretary of Finance to Borrow to Meet Public
Expenditures Authorized by Law, and for Other Purposes, allows
foreign loans to be contracted in the form of, inter alia, bonds.
Thus:
The Secretary of Finance, with the approval of the President of
the Philippines, after consultation with the Monetary Board, is
authorized to borrow from time to time on the credit of the
Republic of the Philippines such sum or sums as in his judgment may
be necessary, and to issue therefor evidences of indebtedness of
the Philippine Government. Such evidences of indebtedness may be of
the following types:
xxx
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c. Treasury bonds, notes, securities or other evidences of
indebtedness having maturities of one year or more but not
exceeding twenty-five years from the date of issue. (Emphasis
supplied.)
Under the foregoing provisions, sovereign bonds may be issued
not only to supplement government expenditures but also to provide
for the purchase, redemption, or refunding of any obligation,
either direct or guaranteed, of the Philippine Government.
The law-making authority has promulgated a law ordaining an
automatic appropriations provision for debt servicing by virtue of
which the President is empowered to execute debt payments without
the need for further appropriations.
Debt service is not included in the General Appropriation Act,
since authorization therefor already exists under RA Nos. 4860 and
245, as amended, and PD 1967.
Precisely in the light of this subsisting authorization as
embodied in said Republic Acts and PD for debt service, Congress
does not concern itself with details for implementation by the
Executive, but largely with annual levels and approval thereof upon
due deliberations as part of the whole obligation program for the
year.
Specific legal authority for the buyback of loans is established
under Section 2 of Republic Act (R.A.) No. 240, viz:
Sec. 2. The Secretary of Finance shall cause to be paid out of
any moneys in the National Treasury not otherwise appropriated, or
from any sinking funds provided for the purpose by law, any
interest falling due, or accruing, on any portion of the public
debt authorized by law. He shall also cause to be paid out of any
such money, or from any such sinking funds the principal amount of
any obligations which have matured, xxx or, if redeemed prior to
maturity, such portion of the face value as is prescribed by the
terms and conditions under which such obligations were originally
issued.
The afore-quoted provisions of law specifically allow the
President, thru its alter ego, to pre-terminate debts without
further action from Congress
The fact that the Constitution does not explicitly bar the
President from exercising a power does not mean that he or she does
not have that power
It is inescapable from the standpoint of reason and necessity
that the authority to contract foreign loans and guarantees without
restrictions on payment or manner thereof coupled with the
availability of the corresponding appropriations, must include the
power to effect payments or to make payments unavailing by either
restructuring the loans or even refusing to make any payment
altogether.
More fundamentally, when taken in the context of sovereign
debts, a buyback is simply the purchase by the sovereign issuer of
its own debts at a discount. Clearly then, the objection to the
validity of the buyback scheme is without basis
(2) WON this power can be delegated - YES, it is within the
realm of the expertise of the Department of Finance; Doctrine of
Qualified Political Agency; Lack of showing that the President
countermanded DOFs orders, deemed presidential approval
Petitioners stress that unlike other powers, which may be
validly delegated by the President, the power to incur foreign
debts is expressly reserved by the Constitution in the person of
the President. They argue that the gravity by which the exercise of
the power will affect the Filipino nation requires that the
President alone must exercise this power. They submit that the
requirement of prior concurrence of an entity specifically named by
the Constitution the Monetary Board reinforces the submission that
not respondents but the President "alone and personally" can
validly bind the country.
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.
The evident exigency of having the Secretary of Finance
implement the decision of the President to execute the debt-relief
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.
Necessity thus gave birth to the doctrine of qualified political
agency, later adopted in Villena v. Secretary of the Interior from
American jurisprudence
Inevitably, it fell upon the Secretary of Finance, as the alter
ego of the President regarding "the sound and efficient management
of the financial resources of the Government," to formulate a
scheme for the implementation of the policy publicly expressed by
the President herself.
The decision to contract or guarantee foreign debts is of vital
public interest, but only akin to any contractual obligation
undertaken by the sovereign, which arises not from any
extraordinary incident, but from the established functions of
governance.
The Secretary of Finance or any designated alter ego of the
President is bound to secure the latters prior consent to or
subsequent ratification of his acts. In the matter of contracting
or guaranteeing foreign loans, the repudiation by the President of
the very acts performed in this regard by the alter ego will
definitely have binding effect.
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Notably though, petitioners do not assert that respondents
pursued the Program without prior authorization of the President or
that the terms of the contract were agreed upon without the
Presidents authorization. Congruent with the avowed preference of
then President Aquino to honor and restructure existing foreign
debts, the lack of showing that she countermanded the acts of
respondents leads us to conclude that said acts carried
presidential approval.
It bears emphasis that apart from the Constitution, there is
also a relevant statute, R.A. No. 245, that establishes the
parameters by which the alter ego may act in behalf of the
President with respect to the borrowing power. This law expressly
provides that the Secretary of Finance may enter into foreign
borrowing contracts. This law neither amends nor goes contrary to
the Constitution but merely implements the subject provision in a
manner consistent with the structure of the Executive Department
and the alter ego doctine.
(3) WON the Financing Program violates several constitutional
policies and the contracts executed or to be executed pursuant
thereto were or will be done by respondents with grave abuse of
discretion amounting to lack or excess of jurisdiction - NO
Petitioners allege that the Financing Program violates the
constitutional state policies to promote a social order thus, the
contracts executed or to be executed pursuant thereto were or would
be tainted by a grave abuse of discretion amounting to lack or
excess of jurisdiction.
Respondents cite the following in support of the propriety of
their acts: (1) A Department of Finance study showing that as a
result of the implementation of voluntary debt reductions schemes,
the countrys debt stock was reduced by U.S. $4.4 billion as of
December 1991; (2) Revelations made by independent individuals made
in a hearing before the Senate Committee on Economic Affairs
indicating that the assailed agreements would bring about
substantial benefits to the country; and (3) The Joint
Legislative-Executive Foreign Debt Councils endorsement of the
approval of the financing package containing the debt-relief
agreements and issuance of a Motion to Urge the Philippine Debt
Negotiating Panel to continue with the negotiation on the aforesaid
package.
Even with these justifications, respondents aver that their acts
are within the arena of political questions, which the judiciary
must leave without interference lest the courts substitute their
judgment for that of the official concerned and decide a matter
which by its nature or law is for the latter alone to decide.
Assuming the accuracy of the article written by Jude Esguerra
(which the petitioners used to support their claim) regarding the
Buyback and Securitization Agreement that, at the worst-case
scenario, it will yield a $1.638M flow out of the country, the
court can make no conclusion other than that respondents efforts
were geared towards debt-relief with marked positive results and
towards
achieving the constitutional policies which petitioners so
hastily declare as having been violated by respondents.
Moreover, the policies set by the Constitution as litanized by
petitioners are not a panacea that can annul every governmental act
sought to be struck down.
(4) WON petitioners had locus standi YES, as citizens of the
Philippines and as taxpayers. Also, as this issue is of paramount
public interest, it is but just for the court to take cognizance of
the case.
Conclusion The raison d etre of the Financing Program is to
manage debts incurred by the
Philippines in a manner that will lessen the burden on the
Filipino taxpayersthus the term "debt-relief agreements." The
measures objected to by petitioners were not aimed at incurring
more debts but at terminating pre-existing debts and were backed by
the know-how of the countrys economic managers as affirmed by third
party empirical analysis.
That the means employed to achieve the goal of debt-relief do
not sit well with petitioners is beyond the power of this Court to
remedy.
The exercise of the power of judicial review is merely to
checknot supplantthe Executive, or to simply ascertain whether he
has gone beyond the constitutional limits of his jurisdiction but
not to exercise the power vested in him or to determine the wisdom
of his act.
In cases where the main purpose is to nullify governmental acts
whether as unconstitutional or done with grave abuse of discretion,
there is a strong presumption in favor of the validity of the
assailed acts. The heavy onus is in on petitioners to overcome the
presumption of regularity.
Dispositive Portion: WHEREFORE the petition is hereby DISMISSED.
No costs.
5. Abaya v. Ebdane (RL) TOPIC: Exchange Notes are executive
agreements and are binding among the states. TREATIES/LAWS:
EO 40 Consolidating Procurement Rules and Procedures for All
National Government Agencies, GOCCs and Government Financial
Institutions, and Requiring the Use of the Government Procurement
System
RA 9184 An Act for the Modernization, Standardization and
Regulation of the Procurement Activities of the Government and for
Other Purposes
Exchange of Notes this constitutes an executive agreement G.R.
No. 167919. February 14, 2007.
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Petitioners: PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA
(retired) and PMA 59 FOUNDATION, INC., rep. by its President,
COMMODORE CARLOS L. AGUSTIN (retired) Respondents: HON. SECRETARY
HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T.
BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET
and MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity
as Secretary of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L.
LASALA, in her capacity as Treasurer of the Bureau of Treasury, and
CHINA ROAD and BRIDGE CORPORATION Ponente: Callejo, Sr., J.
FACTS:
The Government of Japan and the Government of the Philippines,
through their respective representatives, Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the
Republic of the Philippines, and then Secretary of Foreign Affairs
Domingo L. Siazon, reached an understanding concerning Japanese
loans to be extended to the Philippines.
These loans were aimed at promoting our countrys economic
stabilization and development efforts.
The Exchange of Notes consisted of two documents: o A Letter
from the Government of Japan, signed byAra, addressed to
Siazon, confirming the understanding reached between the two
governments concerning the loans to be extended by the Government
of Japan to the Philippines; and
o A document denominated as Records of Discussion where the
salient terms of the loans were reiterated and the said terms were
accepted by the Philippine delegation.
o Both of them signed the Records of Discussion as
representatives of their Governments.
The Exchange of Notes provided that the loans to be extended by
the Japan to the Philippines consisted of two loans: Loan I and
Loan II.
The Exchange of Notes stated in part: o A loan worth
Y79,861,000,000 (Loan I) will be extended, in accordance
with the relevant laws and regulations of Japan to the
Philippines by the Japan Bank for International Cooperation (JBIC)
to implement the projects enumerated in the List A, which included
the Arterial Road Links Development Project, Cordillera Road
Project, Philippines-Japan Friendship Highway Mindanao Section
Rehabilitation Project, etc.
o The Loan I will be made available by loan agreements to be
concluded between the Phils and JBIC.
An agreement was reached between both Governments, as shown in
the Exchange of Notes between the representative.
The Philippines obtained from and was granted a loan by the
JBIC, Loan Agreement No. PH-P204 dated December 28, 1999.
Under the terms and conditions of the Loan JBIC agreed to lend
the Philippine Government an amount not exceeding Y 15,384,000,000
as principal for the implementation of the Arterial Road Links
Development Project (Phase IV).
o The amount shall be used for the purchase of goods and
services necessary for the implementation of the project.
Phase IV includes the Catanduanes Circumferential Road, which
was further dividided in 4 packages:
o CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818
kms o CP II: Viga-Bagamanoc Road - 10.40 kms. o CP III:
Bagamanoc-Pandan Road - 47.50 kms. o CP IV: Pandan-Caramoran-Codon
Road - 66.40 kms.11
Subsequently, the DPWH caused the publication of the "Invitation
to Prequalify and to Bid" for the implementation of the CP I
project in two leading national newspapers (Manila Times and Manila
Standard) on November 22 and 29, and December 5, 2002.
23 foreign and local contractors responded to the invitation but
only 8 contractors were eligible to bid, one withdrew, so a total
of 7 contractors.
Prior to the opening of the respective bid proposals, it was
announced that the Approved Budget for the Contract (ABC) was
P738,710,563.67.
The result of the bidding revealed the following 3 lowest
bidders:
Name of Bidder Original Bid As Read (Pesos)
As-Corrected Bid Amount (Pesos)
Variance
1) China Road & Bridge Corporation
P 993,183,904.98 P952,564,821.71 28.95%
2) Cavite Ideal Intl Const. Devt. Corp.
P1,099,926,598.11 P1,099,926,598.11 48.90%
3) Italian Thai Devt. Public Company, Ltd.
P1,125,022,075.34 P1,125,392,475.36 52.35%
The bid of private respondent China Road & Bridge
Corporation was corrected from
the original P993,183,904.98 (with variance of 34.45% from the
ABC) to P952,564,821.71 (with variance of 28.95% from the ABC)
based on their letter clarification dated April 21, 2004.
Mr. Hedifume Ezawa, Project Manager of the Catanduanes
Circumferential Road Improvement Project (CCRIP), in his Report,
recommended the award of the contract to private respondent China
Road & Bridge Corporation.
The BAC of the DPWH, with the approval of then Acting Secretary
Soriquez, issued the assailed Resolution No. PJHL-A-04-012 dated
May 7, 2004 recommending the
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award in favor of private respondent China Road & Bridge
Corporation of the contract under JBIC Loan Agreement No.
PH-P204.
On September 29, 2004, a Contract of Agreement (COA) was entered
into by and between the DPWH China Road & Bridge Corporation
for the implementation of the CP I project.
The petitioners mainly seek to nullify the Resolution and they
seek to annul the COA entered into by DPWH and China Road &
Bridge Corporation.
ISSUES/HELD: 1. W/N Petitioners have standing to file the
instant PetitionYES, they possess locus
standi to file the present suit as taxpayers. Locus standi a
right of appearance in a court of justice on a given question."
o a partys personal and substantial interest in a case such that
he has sustained or will sustain direct injury as a result of the
governmental act being challenged.
o "Interest" material interest, an interest in issue affected by
the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest.
The prevailing doctrine in taxpayers suits is to allow taxpayers
to question contracts entered into by the national government or
GOCCs allegedly in contravention of law.
o A taxpayer is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of
public funds through the enforcement of an invalid or
unconstitutional law.
o He need not be a party to the contract to challenge its
validity. The petitioners are suing as taxpayers.
o They have sufficiently demonstrated that taxpayers money would
be or is being spent on the project considering that the Philippine
Government is required to allocate a peso-counterpart therefor.
o The respondents themselves admit that appropriations for these
foreign-assisted projects are composed of the loan proceeds and the
peso-counterpart.
o The counterpart funds refer to the component of the project
cost to be financed from government-appropriated funds, as part of
the governments commitment in the implementation of the
project.
2. W/N the Resolution and the COA are validYES, Resolution No.
PJHL-A-04-012 is
valid. As a corollary, the subsequent contract is likewise
valid.
Brief History of Philippine Procurement Laws (I dont think this
is important, but we can never be too sure with Cande. HAHA)
The US Philippine Commission (1901), through various statutes
(Act No. 22, 74, 82, etc), introduced the American practice of
public bidding mainly for the making of contracts for public works
and the purchase of office supplies for the use of the Govt.
On February 3, 1936, Pres. Manuel L. Quezon issued EO No. 16
declaring as a matter of general policy that government contracts
for public service or for furnishing supplies, materials and
equipment to the government should be subjected to public
bidding.
The Revised Administrative Code of 1917 subsequently improved
public bidding. Pres. Diosdado Macapagal up to PGMA issued various
EOs and PDs, which
reiterated the need for public bidding when dealing with
government projects. These included procurement laws and
guidelines.
PGMA (Oct. 2001) issued EO 40, the law mainly relied upon by the
respondents, entitled Consolidating Procurement Rules and
Procedures for All National Government Agencies, GOCCs and
Government Financial Institutions, and Requiring the Use of the
Government Procurement System. It repealed, amended or modified all
executive issuances, orders, rules and regulations or parts thereof
inconsistent therewith.
She signed into law RA 9184 (January 2003) which expressly
repealed, among others, those EOs and PDs issued by the former
presidents.
(End of History) EO 40, not RA 9184, is applicable to the
procurement process undertaken for the
CP I project. RA 9184 cannot be given retroactive application.
(Petitioners insist RA 9184 is the applicable process)
o It is not disputed that the Invitation to Prequalify and to
Bid for its implementation was published in two leading national
newspapers.
o At the time, the law in effect was EO 40. o On the other hand,
RA 9184 took effect two months later
The procurement process of CP I is covered by EO 40 (sec. 1) o
shall apply to see procurement of (a) goods, supplies, materials
and
related service; (b) civil works xxx The procurement process
involves the following steps:
o (1) pre-procurement conference; o (2) advertisement of the
invitation to bid; o (3) pre-bid conference; o (4) eligibility
check of prospective bidders; o (5) submission and receipt of
bids;
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o (6) modification and withdrawal of bids; o (7) bid opening and
examination; o (8) bid evaluation; o (9) post qualification; o (10)
award of contract and notice to proceed.
Clearly then, when the Invitation to Prequalify and to Bid for
the implementation of the CP I project was published, the
procurement process had already commenced and the application of EO
40 to the procurement process for the CP I project had already
attached.
RA 9184 cannot be applied retroactively as there was no express
provision that provides for such.
Further, the Transitory Clause (Sec. 77) of the IRR-A for the
applicability of RA9184 provides that:
o if the advertisement of the invitation for bids was issued
prior to the effectivity of RA 9184, such as in the case of the CP
I project, the provisions of EO 40 and its IRR, and PD 1594 and its
IRR in the case of national government agencies, and RA 7160 and
its IRR in the case of local government units, shall govern.
The IRR-A covers only fully domestically-funded procurement
activities from procurement planning up to contract implementation
and that it is expressly stated that IRR-B for foreign-funded
procurement activities shall be subject of a subsequent
issuance.
o Nonetheless, there is no reason why the policy behind Section
77 of IRR-A cannot be applied to foreign-funded procurement
projects like the CP I project.
o It would be incongruous, even absurd, to provide for the
prospective application of RA 9184 with respect to
domestically-funded procurement projects and, on the other hand, as
urged by the petitioners, apply RA 9184 retroactively with respect
to foreign-funded procurement projects.
Under EO 40, the award of the contract to private respondent
China Road & Bridge Corporation is valid.
Nonetheless, EO 40 expressly recognizes as an exception to its
scope and application those government commitments with respect to
bidding and award of contracts financed partly or wholly with funds
from international financing institutions as well as from bilateral
and other similar foreign sources.
In relation, Sec. 4 of RA 4860 was correctly cited by the
respondents, authorizes the President, in the contracting of any
loan, credit or indebtedness thereunder, "when necessary, agree to
waive or modify the application of any law granting preferences or
imposing restrictions on international competitive bidding x x
x."
o The said provision of law further provides that "the method
and
procedure in the comparison of bids shall be the subject of
agreement between the Philippine Government and the lending
institution."
The procurement of goods and services for the CP I project is
governed by the corresponding loan agreement entered into by the
government and the JBIC, i.e., Loan Agreement No. PH-P204.
o It is stipulated that the procurement of goods and services
for the Arterial Road Links Development Project (Phase IV), of
which CP I is a component, is to be governed by the JBIC
Procurement Guidelines.
It is clear that the JBIC Procurement Guidelines proscribe the
imposition of ceilings on bid prices and it enjoins the award of
the contract to the bidder whose bid has been determined to be the
lowest evaluated bid.
Since these terms and conditions are made part of Loan Agreement
No. PH-P204, the government is obliged to observe and enforce the
same in the procurement of goods and services for the CP I
project.
As shown earlier, private respondent China Road & Bridge
Corporations bid was the lowest evaluated bid.
o In accordance with the JBIC Procurement Guidelines, therefore,
it was correctly awarded the contract for the CP I project.
Even if RA 9184 were to be applied retroactively, the terms of
the Exchange of Notes and Loan Agreement would still govern the
procurement for the CP I project.
International Law Part!!! (SUPER IMPORTANT) SUB-ISSUE: W/N the
Loan Agreement constitutes an international agreementYES, the
exchange of notes is an executive agreement, hence binding among
the contracting parties.
The petitioners, in order to place the procurement process
undertaken for the CP I project within the ambit of RA 9184, assert
that Loan Agreement is neither a treaty, an international agreement
nor an executive agreement.
They cite EO 459 dated November 25, 1997 where the three
agreements are defined in this wise:
o International agreement shall refer to a contract or
understanding, regardless of nomenclature, entered into between the
Philippines and another government in written form and governed by
international law, whether embodied in a single instrument or in
two or more related instruments.
o Treaties international agreements entered into by the
Philippines which require legislative concurrence after executive
ratification. This term may include compacts like conventions,
declarations, covenants and acts.
o Executive agreements similar to treaties except that they do
not require legislative concurrence.
The petitioners mainly argue that Loan Agreement No. PH-P204
does not fall under
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any of the three categories because to be any of the three, an
agreement had to be one where the parties are the Philippines as a
State and another State.
o The JBIC, the petitioners maintain, is a Japanese banking
agency, which presumably has a separate juridical personality from
the Japanese Government.
The Court holds that Loan Agreement No. PH-P204 taken in
conjunction with the Exchange of Notes between the Japanese
Government and the Philippine Government is an executive
agreement.
The Loan Agreement was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by
the two Governments representatives.
The Exchange of Notes expressed that the two governments have
reached an understanding concerning Japanese loans to be extended
to the Philippines and that these loans were aimed at promoting our
countrys economic stabilization and development efforts.
Under the circumstances