compilation treaties

Public International Law Sources of International Law: Treaties

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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

compilation treaties

Documents

secretary of national

secretary of foreign

dfa secretary domingo

senator rodolfo biazon

senator blas ople

national president

presence of us military

ph senate