Final Memoranda of EDCA Case

REPUBLIC OF THE PHILIPPINESSUPREME COURT

Manila

EN BANC

RENE A.V. SAGUISAG, WIGBERTO E. TAADA, FRANCISCO DODONG NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN STEVE SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN and TEDDY CASIO,

Petitioners,

- versus - G.R. NO. 212426

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, and ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA,

Respondents.x------------------------------------------------------------------x

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by its Secretary General RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REP. NERI J. COLMENARES and REP. CARLOS ZARATE, GABRIELA WOMENS PARTY-LIST REP. LUZ ILAGAN and REP. EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST REP. ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REP. FERNANDO HICAP, KABATAAN PARTY-LIST REP. TERRY RIDON, , MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), represented by SATURNINO OCAMPO and LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RENATO CONSTANTINO, JR., RAFAEL MARIANO, SALVADOR FRANCE,

2MEMORANDUMRENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL., G.R. NO. 212444

ROGELIO M. SOLUTA, and CLEMENTE G. BAUTISTA,

Petitioners,

- versus - G.R. NO. 212444

DEPARTMENT OF DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASST. SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA,

Respondents.x------------------------------------------------------------------x

KILUSANG MAYO UNO, represented by its Chairperson, ELMER LABOG; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), represented by its National President FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO, represented by its National President JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES and ARMANDO TEODORO, JR.,

Petitioners-in-Intervention,x------------------------------------------------------------------x

MEMORANDUM


PETITIONERS, by counsel, to this Honorable Court, most respectfully submit this memorandum and state: That -

What we must achieve, hard as it may seem, is the reclaiming of the task of security, of the upholding of our sovereignty as States, through the participation of people in managing their own societal defense, by developing the capabilities of their own citizenry to resist all kinds of encroachment on their sovereignty without dependence on high technology weaponry. Such a democratized system of security will repudiate naturally not only foreign bases and nuclear weapons but modern conventional weaponry as well. Peoples security instead of national security will be possible when governments represent a society as a whole rather than the special militarized interests that currently dominate the modern State. A dream perhaps, but necessary dream. 1

NATURE OF THE PETITION

1. The Petition is a taxpayers suit and concerned citizens suit to

a. strike down and declare as unconstitutional the EDCA that was entered into by the respondents on behalf of the Philippines, with the government of the United States of America (US); and

b. enjoin all the respondents from implementing the above unconstitutional Agreement and to restrain them from any and all acts relative thereto.

2. The writ of certiorari and prohibition is being sought by the petitioners on the ground that the respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they entered into the EDCA with the US government in utter disregard of the national sovereignty, territorial integrity and national interest provision of the Constitution, Section 25 of the Transitory provisions of the Constitution, Section 21 and other

1 Former Senator Wigberto E. Taada, Keynote Address delivered before the Asia-Pacific Peoples Conference on Peace and Development, January 12, 1989, quoting Richard Falk, Princeton Professor on International Law.


provisions of the Philippine Constitution and various Philippine laws and principles of international law.

3. The EDCA was negotiated in secrecy for nearly two years. During the period that the respondents and the US were negotiating EDCA, only bits and pieces of information were released regarding the terms of the Agreement.

4. With the signing of the Agreement on April 28, 2014, there is no plain, speedy and adequate remedy in the ordinary course of law for Petitioners but to avail themselves of the instant Petition pursuant to Sections 1 and 2 of Rule 65 of the Revised Rules of Court.

5. Considering the transcendental implications of the assailed actions and proceedings of respondents to the Filipino people and the nation, petitioners implore the Honorable Supreme Court to judiciously exercise its expansive power of judicial review as mandated in Article VIII, Section 1 of the Constitution, to wit:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

6. The exercise of judicial review to determine whether the Executive branch of the government through the respondents has exceeded its powers and prerogatives is a duty specifically enjoined upon it by the Constitution as part of a system of checks and balances 2 especially where it involves the national interest and survival, the integrity of our territory, and the sanctity of the Constitution.

7. As respondents' actions are causing and will cause grave injustice and irreparable violation of the Constitution and the Filipino peoples rights; and given the transcendental importance of the case, petitioners, as taxpayers and concerned citizens, seek the issuance of a temporary restraining order and/or writ of preliminary injunction ordering the respondents to cease and desist from proceeding with the implementation of EDCA and

2 Dabuet vs. Roche Pharmaceuticals, 149 SCRA 386.


from further threatening and performing acts that are violative of the Constitution.

PARTIES

The Petitioners

8. Petitioner Bagong Alyansang Makabayan (BAYAN), is an umbrella organization and broad alliance of church groups, peasant organizations, labor federations, youth and student movements, womens groups, fisherfolk, indigenous peoples, lawyers, health workers, migrant groups, and other professionals. It is represented in this Petition by its Secretary General Renato M. Reyes, Jr. who is authorized by virtue of a Certificate dated May 21, 2014, a copy of which is attached in the Petition as Annex B. Its national office is at No. 1 Maaralin corner Matatag St., Brgy. Central, Quezon City.

9. Petitioners Rep. Neri J. Colmenares and Rep. Carlos Zarate are both incumbent Bayan Muna Party-List representatives in Congress.

10. Petitioners Rep. Luzviminda C. Ilagan and Rep. Emerenciana A. de Jesus are incumbent party-list representatives of Gabriela Women's Party in Congress.

11. Petitioner Rep. Antonio L. Tinio is the incumbent representative of ACT Teachers Party-List in Congress.

12. Petitioner Rep. Fernando L. Hicap is the incumbent representative of Anakpawis Party-list in Congress.

13. Petitioner Rep. James Terry L. Ridon is the incumbent representative of Kabataan Party-List in Congress.

Petitioner Party-List Representatives all hold office at the House of Representatives, Batasan Hills, Quezon City.

14. Petitioner Makabayang Koalisyon ng Mamamayan (Makabayan) is a political coalition of progressive party-list organizations, duly organized and existing under and by virtue


of Philippine laws. Makabayan is represented here by Saturnino C. Ocampo and Liza Maza, its president and co-chairperson, respectively, who have been authorized to represent it in this petition through a Secretarys Certificate dated May 21, 2014, a copy of which is attached in the Petition as Annex C. Makabayan is holding office at No. 20 Marunong St., Barangay Central, Quezon City.

15. Petitioner Bienvenido Lumbera is a National Artist for Literature, a recipient of the Ramon Magsaysay Award for Journalism, Literature and Creative Communications. He is also the chairperson of Concerned Artists of the Philippines, an organization of artists, musicians, writers, filmmakers and cultural workers from various disciplines that works toward a nationalist, people-oriented art and culture. His postal address is 15-B Manigo St., Brgy. UP Village, Quezon City.

16. Petitioner Joel C. Lamangan is a film and television director and an actor with postal address at Room 209 Cabrera Bldg., Timog Ave., Quezon City.

17. Petitioner Renato Constantino Jr. is a businessman, nationalist, activist and civil libertarian with postal address at 38-A Panay Avenue, Quezon City.

18. Petitioner Rafael V. Mariano is the national chairperson of Kilusang Magbubukid ng Pilipinas, a democratic and militant movement of landless peasants, small farmers, farm workers, rural youth and peasant women, duly organized and existing under and by virtue of Philippine laws. Its office is at 217-B Alley 1, Road 7, Project 6, Quezon City.

19. Petitioner Salvador France is the vice-chair of Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (or PAMALAKAYA), a national federation of fisherfolk organizations in the Philippines, whose members are affected by the naval exercises conducted by US troops. He holds office at No. 56 K-9th Barangay Kamias, Quezon City.

20. Petitioner Rogelio M. Soluta is the national secretary-general of Kilusang Mayo Uno, an independent labor center in the Philippines promoting genuine, militant and anti-imperialist trade unionism. He holds office at c/o Balai Obrero Foundation,


No. 63 Narra Street, Barangay Claro, Project 3, 1102 Quezon City.

21. Petitioner Clemente G. Bautista, Jr. is the national coordinator of Kalikasan Peoples Network for the Environment, a network of people's organizations, non-governmental organizations and environmental advocates. He holds office at No. 26 Matulungin St., Brgy. Central, Diliman, quezon City.

22. All of the petitioners may be served the processes of this Honorable Court at the addresses of their lawyers indicated below.

The Respondents

23. Respondent Voltaire Gazmin is the incumbent Secretary of the Department of National Defense who signed the lopsided EDCA for the Philippines.

24. Respondent Albert Del Rosario is the incumbent Secretary of the Department of Foreign Affairs tasked to implement our national foreign policy.

25. Respondent Paquito Ochoa, Jr. is the Executive Secretary of President Benigno Simeon Aquino, III who, upon the direction and control of President Aquino as his alter ego, allowed the negotiation and signing of the assailed EDCA despite its contravention of the Constitution.

26. Respondent General Emmanuel T. Bautista is the Chief of Staff of the Armed Forces of the Philippines which is tasked under EDCA to implement the same and, in particular, to provide the US the so-called agreed locations.

27. Respondent Negotiating Panel for the Philippines on EDCA, composed of Defense Undersecretary Pio Lorenzo Batino as Chair; Ambassador Lourdes Yparraguirre, Ambassador J. Eduardo Malaya, Justice Undersecretary Francisco Baraan III, and DND Asst. Secretary for Strategic Assessments Raymund Jose Quilop as members, with instructions from the higher-ups, negotiated for such an unequal agreement with the US.


28. All of the respondents may be served the processes of this Honorable Court through the Office of the Solicitor General, at 134 Amorsolo Street, Makati City.

ANTECEDENT FACTS3

29. The defeat of the Spanish fleet at the hands of US naval forces at the Battle of Manila Bay on May 1, 1898, cleared the way for the U.S. occupation of Manila and the eventual transfer of the Philippines from Spanish to American control.

30. On June 12, 1898, so-called Philippine Independence was declared in Kawit, Cavite. Part of the declaration of independence read:

And summoning as a witness of the rectitude of our intentions, the Supreme Judge of the Universe, and under the protection of the Mighty and Humane North American Nation, we proclaim and solemnly declare, in the name and by authority of the inhabitants of all these Philippine Islands, that they are and have the rights to be free and independent; that they are released from all obedience to the Crown of Spain.....4 But Philippine Independence was farthest from the mind of the US and soon enough their real intentions began to unfold.

31. On December 10, 1898, the Treaty of Paris was signed by the United States of America and Spain. Under the Treaty, Philippines, Guam and Puerto Rico were ceded to America by Spain. America paid Spain US$20-million for the Philippines.

32. Eleven (11) days later or on December 21, 1898, even before the Treaty of Paris could be ratified by the US Senate, President William McKinley, issued the Benevolent Assimilation Proclamation declaring that the United States come not as invaders or conquerors, but as friends, to protect the natives in their homes, in their employment, and in their personal and religious rights.

3 http://www.history.com/this-day-in-history/the-battle-of-manila-bay4 Renato Constantino, The Philippines: A Past Revisited, p. 204


33. McKinley further declared that the United States wanted to win the confidence, respect, and affection of the inhabitants of the Philippines by assuring them in every possible way that full measure of individual rights and liberties which is the heritage of free peoples, and by proving to them that the mission of the United States is one of benevolent assimilation substituting the mild sway of justice and right for arbitrary rule.

34. But despite such words, the proclamation actually directed US military commanders to extend US sovereignty over the Philippines.

35. By July 1899, before the Philippine-American War broke out, there were more than 11,000 American soldiers in the country. By the end of that year there were 55,000. 5

36. Philippine revolutionaries who fought against Spanish rule during the war immediately turned their guns against the new occupiers, and 10 times more U.S. troops died suppressing the Philippines than in defeating Spain.

37. Big-business, prominent bankers and politicians supported the colonization of the Philippines. Their position was reflected by the following words from US Senator Albert Beveridge The Philippines are ours forever, territory belonging to the United States, as the Constitution calls them. And just beyond the Philippines are China's illimitable markets. The Philippines gives us a base at the door of all the East... The Power that rules the Pacific.... is the power that rules the world... 6

38. To pacify the country, wave upon wave of American soldiers were deployed in the country. At the height of the war, around 126,000 American soldiers were stationed in the country. 7

39. To house the growing number of US military personnel and ensure their strategic deployment in the country, US President Theodore Roosevelt issued an executive order in 1901 establishing the Subic Bay Naval Reservation while maintaining the US Navy headquarters in Cavite. In 1902 President Roosevelt signed another executive order establishing Fort

5 Ibid, at p. 208.6 US Congressional Records, Senate 56th Congress, 1st Session, January 9, 1900, pp. 704-712)7 Renato Constantino, The Philippines: A Past Revisited : p. 241.


Stotsenburg in the location that was later occupied by Clark Airbase. Fort Stotsenburg was first used as a military camp by US cavalry forces at the outbreak of the Philippine-American War.

40. The war that ensued was a brutal one. Estimates of those who died range from a low of 12,000 to 20,000 Filipino combatants and 200,000 to 600,000 civilians. 8

41. The military victory enabled the United States of America to establish control over the Philippines politically and economically. Successive military governors exercising military, executive and civilian functions were appointed.

42. The military governors eventually gave way to civilian governors. A local legislature and judiciary were later established. But it was only in 1946 that the Philippines formally declared independence from the United States.

43. In order to maintain the economic and political hold of the US on the Philippines, the US military bases in the country remained after the declaration of Philippine Independence.

44. On March 14, 1947, the Philippines and the United States through President Manuel Roxas and US Ambassador Paul V. McNutt signed the Agreement Between the United States of America and the Republic of the Philippines Concerning Military Bases. The agreement entered into force on March 26, 1947.

45. The Military Bases Agreement (MBA) gave the US government the right to retain the use of the (US) bases in the Philippines. The MBA granted the US forces the use of certain lands of the public domain, free of rent, owing to the mutual interests of both countries.

46. The MBA gave the US control of at least 16 bases including Clark Airbase and Subic Naval Base, as well as access to and use of Philippine facilities such as the Mactan Island Army and Navy Base and the Floridablanca Airbase in Pampanga.

8 Ibid., at p. 245.


47. On March 21, 1947, Pres. Roxas and McNutt signed the RP-US Military Assistance Agreement (MAA) which was considered a sister agreement to the RP-US Military Bases Agreement (1947). The MAA provided for the creation of the Joint U.S. Military Advisory Group (JUSMAG), and the permanent stationing of US military officials in Manila for the logistical and training requirements of the Armed Forces of the Philippines.

48. On August 30, 1951, representatives of the Philippines and the US signed the Mutual Defense Treaty (MDT) in Washington D.C. The MDT provided for mutual defense against external armed attack. Under the MDT, each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

49. To provide a semblance of Philippine control of the American bases, Olongapo, which was then an American territory, was formally turned over by the US to the Philippines on October 28, 1959. In the succeeding years, 17 of the 23 military installations operated by the US were also turned over to the Philippines.

50. On September 16, 1966, the US and Philippine governments agreed to reduce the term of the bases treaty to 25 years starting from that year and ending in 1991.

51. Over the years, American military bases in the country served as launching sites for US involvement in various wars such as the war in Vietnam. The US bases also served supply storage, repair and rest and recreation facilities for US military personnel.

52. The MBA Review of 1979 placed Clark and Subic under the nominal ownership of the Philippine government, making them US installations inside Philippine military installations. The review also provided for each base to be formally under a Filipino base commander. As supposed owners of the facilities, the Philippines flew its flag in these bases together with the US flag. The Philippine government also provided perimeter security for the bases.


53. In 1987, the Philippine Constitution was ratified, which explicitly prohibits foreign military bases, troops, or facilities in the country beyond the year 1991, except under a treaty concurred in by the Senate.

54. On September 16, 1991, the Philippine Senate exercising its mandate under the Constitution, voted not to renew the bases treaty. This supposedly signaled the end of US military presence in the Philippines.

55. But this was not the case. On May 27, 1999, the Philippine Senate ratified the RP-US Visiting Forces Agreement (VFA) which defined the treatment of visiting US troops who participated in joint military exercises among other activities. The VFA dealt with the issues of criminal jurisdiction, tax exemptions and the movement of US troops and vessels.

56. Petitioner Bayan challenged the VFA before the High Court by claiming it was too broad and would allow the permanent stationing of an unlimited number of troops, for an unlimited time, and for undefined activities.

57. However, the constitutionality of the VFA was upheld. This paved the way for renewed US military presence in the country.

58. On January 2002, the Philippines and the US began what was known as Balikatan 02-1 which sent US troops to Mindanao to assist Philippine forces in the war on terror against the Abu Sayyaf. The Joint Task Force, which would later be known as the Joint Special Operations Task Force Philippines (JSOTF-P), was deployed in Mindanao. Some 600 US Special Forces elements engaged in various anti-terror operations were being rotated in Zamboanga, establishing a permanent and continuing presence in the region, under the VFA.

59. The 600 US Special Forces would remain stationed in Camp Navarro in Zamboanga City till today, 12 years after their first mission.

60. Aside from those stationed in Camp Navarro in Zamboanga City, US military personnel sporadically arrive in the Philippines under the VFA to participate in military exercises or for rest and recreation. With their presence in the Philippines, inevitably,


American military personnel would get involved in incidents resulting to criminal offenses. One such case was the Subic rape case which became the subject of the case decided by the Honorable Court in Nicolas vs. Romulo. Another is the more recent case of the killing of transgender woman Jennifer Laude in Olongapo.

61. On November 21, 2002, the Philippine and US governments through Commodore Ernesto de Leon, Deputy Chief of Staff for Plans, on behalf of the Armed Forces of the Philippines (AFP) Chief of Staff, and Col. Mathias Velasco, representing the Commander of the US Pacific Command, signed the MLSA at Camp Aguinaldo. The pact dealing with logistic support for visiting US troops and vessels was considered an executive agreement not needing Senate ratification. The MLSA provided for logistics services but did not allow the setting up of permanent structures or facilities for US troops. The MLSA was the second agreement after the VFA which would pave the way for the return of US basing opportunities in the Philippines. The MLSA had a term of 5 years and would be renewed by the Arroyo government in 2007 and the Aquino government in 2012.

62. On September 23, 2009, in light of the Subic rape case and after hearings regarding the implementation of the VFA, the Philippine Senate passed Resolution 1356 calling on the Executive to renegotiate the VFA, and if the US refused, issue a notice of termination of the agreement.

63. On January 3, 2012, the US government through President Barack Obama announced its strategic pivot towards Asia as laid out in the document Sustaining US Global Leadership, Priorities for 21st Century Defense.9

64. Seeking to redeploy 60% of its warships to Asia, the US revealed in said document that:

U.S. economic and security interests are inextricably linked to developments in the arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia, creating a mix of evolving challenges and opportunities. Accordingly, while the U.S. military will continue to contribute to

9 A copy is attached to the Petition as Annex D.


security globally, we will of necessity rebalance toward the Asia-Pacific region.

65. Pursuant to the US strategic pivot to Asia, the first Ministerial Dialogue was held in Washington D.C. on April 30, 2012 which was attended by the Philippine Secretaries of the Departments of National Defense and Foreign Affairs, as alter egos of President Benigno Simeon Aquino III, and the US State Department and Department of Defense.

66. The dialogue ended with the Philippine delegation clearly upon the instructions of Pres. Aquino, agreeing to adopt a policy of increased rotational presence of US troops, increased military exercises and more frequent port calls by US ships. Also discussed therein was the granting to US military further access to more areas in the Philippines including our air strips.

67. In line with the strategic pivot to Asia, the US and the Philippines held the first Ministerial Dialogue in Washington D.C. on April 30, 2012. The dialogue included the Departments of Defense and Foreign Affairs and the US State Department and Department of Defense. The two countries adopted a policy of increased rotational presence of US troops, increased military exercises and more frequent port calls by US ships. The two sides also discussed granting the US military further access to areas in the Philippines including airstrips.

68. On August 16, 2013, the US and the Philippines began negotiations for the Framework Agreement for Increased Rotational Presence and Enhanced Defense Cooperation which sought to give the US military access to Philippine facilities. The framework agreement was deemed in the form of an executive agreement not needing the Philippine Senates concurrence. The negotiators would eventually change the title of the framework agreement to the Enhanced Defense Cooperation Agreement (EDCA).

69. The EDCA would be the third military agreement with the US after the VFA which would secure new US basing opportunities in the Philippines.

70. On April 28, 2014, Philippine Department of National Defense Secretary Voltaire Gazmin and United States Ambassador to


the Philippines Philip Goldberg signed the Enhanced Defense Cooperation Agreement two hours before the arrival in Manila of US President Barack Obama. The text of the agreement was not disclosed during the Obama visit.

71. It was only on April 29, 2014, a few hours after Obama left Manila, that the text of the EDCA was made public for the first time via the official government website www.gov.ph.

72. Upon review, the petitioners learned that EDCA is so grossly lopsided in favor of the US that the secrecy surrounding its negotiations can only be viewed as an attempt to thwart any criticism or even public debate regarding its content.

73. Not only is EDCA grossly one-sided and greatly disadvantageous to the Filipino people, EDCA also constitutes a derogation of our countrys dignity and an unconscionable sellout of our sovereignty.

74. For entering into this morally shocking agreement and giving up our sovereignty and national interest, the petitioners filed the instant Petition on May 27, 2014.

75. In a Resolution dated June 3, 2014, the instant petition was consolidated with the petition entitled Rene A.V. Saguisag, Wigberto E. Taada, Francisco Dodong Nemenzo, Jr., Sr. Mary John Mananzan, et al vs. Executive Secretary Paquito Ochoa, Department of Defense Secretary, Voltaire Gazmin, Department of Foreign Affairs Secretary Albert del Rosario, Jr. et al and docketed as G.R. No. 212426.

76. On November 18 and 25, 2014, oral arguments were held. Thereafter, the parties were directed to file their respective memoranda.

77. Hence, this memorandum.

78. The Petitioners raise the following -

GROUNDS IN SUPPORT OF THE PETITION


I

A. THE RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION WHEN THEY ENTERED INTO THE EDCA AS IT CONSTITUTES A DEROGATION OF NATIONAL SOVEREIGNTY AND TERRITORIAL INTEGRITY.

B. RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION BY ENTERING INTO THE EDCA BECAUSE IT CONTRAVENES OUR NATIONAL INTEREST. EDCA IS ALSO CONTRARY TO PUBLIC POLICY AND PUBLIC INTEREST.

II

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISIDICTION WHEN THEY SIGNED THE EDCA, ESSENTIALLY A BASING AGREEMENT, IN VIOLATION OF THE CONSTITUTION AND CONTRARY TO THE TENETS OF INTERNATIONAL LAW.

III

EDCA IS NOT IN IMPLEMENTATION OR FURTHERANCE OF THE MUTUAL DEFENSE TREATY AND THE VISITING FORCES AGREEMENT.

IV

EDCA IS CONTRARY TO VARIOUS PROVISIONS OF THE CONSTITUTION AND OTHER LAWS.

ISSUES

79. The Honorable Court in its resolution dated October 21, 2014, defined the following issues for the oral arguments:


A. Whether the petitioners have legal standing in the present cases;

B. Whether these cases and the issues raised are justi-ciable;

C. Whether the Enhanced Defense Cooperation Agreement (EDCA) is a treaty or an international agreement that re-quires Senate concurrence. In particular:

1. Whether the provisions in EDCA pertaining to the pres-ence of the United States personnel are already covered and allowed under any existing treaty between the Repub-lic of the Philippines and the United States of America; and whether the treaty, if any, has already been concurred in by the Senate. If so, whether any of the provisions under EDCA modifies or amends any existing treaty between the two countries;

2. Whether the provisions in EDCA pertaining to the pres-ence of equipment, supplies and materiel of the United States Armed Forces are already covered and allowed un-der any existing treaty between the Republic of the Philip-pines and the United States of America; and whether any such treaty has already been concurred in by the Senate. If so, whether any of the provisions under EDCA modifies or amends any existing treaty between the two countries;

3. Whether the Agreed Locations pertained to in EDCA are or should be considered akin to foreign military bases or facilities.

If so, whether the provisions in EDCA pertaining to Agreed Locations are already covered and allowed under any existing treaty between the Republic of the Philippines and the United States of America; and whether the treaty, if any, has already been concurred in by the Senate. If so, whether any of the provisions under EDCA modifies or amends any existing treaty between the two countries;

If the Agreed Locations are not or should not be considered akin to foreign military bases or facilities, or any variant thereof, what are they and what are the legal justifications for allowing their presence in the Philippines?


4. Whether the Constitution allows the presentation, for Sen-ate concurrence, of separate provisions in an agreement instead of the entire instrument;

5. Whether the Republic of the Philippines has already ex-pressed its consent to be bound by the provisions of EDCA; if it has, whether this Court can still invalidate EDCA or any of its provisions;

B. Whether petitioners may validly challenge the provisions of the Mutual Defense Treaty and the Visiting Forces Agreement in the present case.

C. Whether there are limits to the constitutionally assigned sphere of discretion of the President concerning foreign relation matters;

D. Whether the EDCA deprives the Supreme Court of its ju-dicial power;

E. Whether the petitioners are entitled to the reliefs reques-ted.

ARGUMENTS AND DISCUSSION

Procedural Issues

A. The Petitioners have legal standing to file the instant petition.

B. The instant petition and the issues raised are justiciable.

80. At the outset, Petitioners submit that they have locus standi to file the instant Petition, having clear personal interests in the matter under judicial review. The proceeding before this Honorable Court involves the assertion and protection of a public right and therefore the requirement of personal interest


is satisfied by the mere fact that the petitioner is a citizen, and therefore, a part of the general public which possesses the right.10

81. Considering that EDCA would also require the disbursement of public funds11 and waiver on the payment of taxes, fees, and rentals, petitioners have locus standi as taxpayers. 12

82. Additionally, Petitioner-Party List Representatives seek recourse from the courts because an act of the Executive injures the institution of Congress and causes a derivative but nonetheless substantial injury.

83. Respondents pray for the Court to dismiss the Petitions due to Petitioners alleged lack of standing, upon the theory that the silence of the Senate mean[s] nothing less tha[n] a positive endorsement of the EDCA as an executive agreement.

84. Granting that the Senate is indeed silent in the matter of EDCA and that confirmation of its nature follows from such a silence, Respondents theory brushes aside the true import of Section 25, Article XVIII. Indeed, no sitting member of the Senate is before the Court, but it is undeniable that Petitioners are Filipino citizens and elected Members of the House of Representatives.

85. Considering that Section 25 lays down the restrictive conditions for the exception to the whole orientation of the Constitution x x x against foreign military presence in Philippine territory,13 the Constitution therein provides that the entire body having legislative power, not just the Senate, has a say on whether foreign military presence can be allowed to return to the Philippines. This is the constitutionally mandated rightand dutyof Congress as a whole and the people themselves invoked by Petitioners in this case.

86. Therefore, the standing of Petitioners, who are direct representatives of the people and members of the Philippine

10 Legaspi vs. Civil Service Commission, 150 SCRA 530.11 See EDCA at Article X, paragraph 1.12 Ibid., at Article III, paragraph 3 and Article VII, paragraphs 2 and 3. 13 Page 176, The New Bases Treaty: Political and Legal Issues; The Post-Cold War Era and the Continuing US Military Presence in International law issues in perspective, Magallona, Merlin M.


citizenry themselves, stems from Section 25. Respectively, they exercise the derivative and primary legislative power in the matter of foreign military presence, but which power was negated by the acts of the Respondents in entering into the EDCA as a mere executive agreement.

87. Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as legislators.14 It has been recognized that a member of the Legislature has the requisite personality to bring a suit where a constitutional issue is raised.15

The Petition and the issues raised are justiciable.

88. It is well to state at the outset that the facts and circumstances prevailing in the present Petition are sufficient for this Honorable Court to exercise its constitutional power of judicial review.

89. The legal requisites for judicial inquiry are the following: 16 (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lismota of the case.

90. First, there is an actual case or controversy.

In the recent case of Belgica v. Ochoa, (GR No. 208566, November 19, 2013), the Honorable Court stated -

"By constitutional fiat, judicial power operates only when there is an actual case or controversy. This is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that

14 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco v. House of Representatives, 460 Phil. 830, 842 (2003), citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.15 See for instance, Gonzales v. Macaraig, G.R. No. 87636. November 19, 1990, citing Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1961, 41 SCRA 702.16 Dumlao vs Commission on Elections, 95 SCRA 392.


"judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable xxx." Jurisprudence provides that an actual case or controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. In other words, "there must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence." Related to the requirement of an actual case or controversy is the requirement of "ripeness", meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the act being challenge has had a direct adverse effect on the individual challenging it. It is a prerequisite that something had been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action." "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions."

91. The allegations in this Petition sufficiently show the existence of a conflict and contrariety of legal rights and claims which are susceptible of judicial resolution, and which can be interpreted and enforced on the basis of existing law and jurisprudence.

92. The present petition, filed under Rule 65 of the Rules of Court or the special civil action of certiorari and prohibition, seeks to set a right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by the Respondents, and likewise declare the EDCA unconstitutional; and that the EDCA is essentially a basing agreement sans the requirements under Section 25, Article XVIII of the Constitution.

93. Thus, Petitioners allege that Respondents committed grave abuse of discretion when they entered into the EDCA because they failed to ensure the permanent inviolability of our national territory and its effective control by the government and the State as mandated by the Constitution.

94. On the other hand, Respondents posit that their acts in entering into the EDCA comply with the Constitution and the law, whether local or international. In the main, Respondents argue


that the EDCA is a mere executive agreement which implements the Mutual Defense Treaty and/or the VFA, as such the constitutional requirement for Senate concurrence is unnecessary. Moreover, they claim that when states enter into international agreements, they surrender certain aspects of their sovereignty.

95. Clearly, there exists a conflict or controversy that requires the exercise by the Honorable Court of its judicial power.

96. The issues are ripe for adjudication. First, the EDCA has already been signed by the respective representatives of both the Philippines and the US governments. Second, the Acting Solicitor General already confirmed that the EDCA is already in force since it has already been ratified by the President on June 6, 2014 and in the case of the US, it considers the EDCA to have entered into force on the 25th of June 2014, as reflected in its diplomatic note of the same date.17

97. Verily, there now exists an immediate or threatened injury to Petitioners as a result of the grave abuse of discretion and unconstitutional acts of Respondents. As such, any decision or resolution of this Honorable Court will not in any way be considered as advisory opinion.

98. Second, to reiterate, Petitioners have successfully shown their legal standing in filing this case, and their position is very much supported by jurisprudence.

99. In La Bugal-B'laan case (465 Phil. 860, 890 (2004)), quoted in the Belgica case, the Honorable Court stated,

"The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. Unless a person is injuriously affected in any of his constitutional rights by the operation statute or ordinance, he has no standing."

17 See TSN dated November 25, 2014 at p. 7.


100. The Petitioners are bringing this case in their capacity as citizens of the Republic asserting a public right, that is, the fundamental right guaranteed by the Constitution and which right stands to be prejudiced by the unconstitutional acts of Respondents. Thus, the issue being one which involves the assertion and protection of a public right, therefore, the requirement of personal interest is already satisfied.

101. In the Belgica case, the Court therein upheld Petitioners' standing who sued as citizens, considering that the issues raised therein may be classified as matters of transcendental importance, of overarching significance to society, or of paramount public interest. The same standard applied in Belgica must be used in this present Petition.

102. Petitioners are also bringing this case in the form of taxpayers' suit, alleging that the implementation of EDCA involves disbursement of public funds and waiver on the payment of taxes, fees and rentals. Clearly, as taxpayers, they possess the requisite standing to question the validity of the EDCA, bound as they are to suffer from the unconstitutional wastage of public funds or failure by the government to collect taxes, fees and rentals by virtue of such waiver.

103. Finally, the question of constitutionality was raised at the earliest opportunity, and the issue of the constitutionality of the EDCA is the very lismota of the case, being as it is, a case filed under Rule 65 of the Rules of Court.

104. In the recent case of Araullo v. Aquino (GR No. 209287, July 1, 2014), this Honorable Court had the occasion to discuss the concept of expanded power of judicial review. In the Separate Opinion of Justice Brion in the case, he presented a treatise on the concept of the Court's expanded power of judicial review. According to him,

"Under the expanded judicial power, justiciability expressly and textually depends only on the presence or absence of grave abuse of discretion, as distinguished from a situation where the issue of constitutional validity is raised within a traditionally justiciable case which demands that the requirement of actual controversy based on specific legal rights must exist. Notably, even if the requirements under the


traditional definition of judicial power are applied, these requisites are complied with once grave abuse of discretion is prima facie shown to have taken place. The presence or absence of grave abuse of discretion is the justiciable issue to be resolved.

Necessarily, a matter is ripe for adjudication under the expanded judicial power if the assailed law or rule is already in effect. If something had already been accomplished or performed by the Legislative and/or the Executive, and the petitioner sufficiently alleges the existence of an immediate or threatened injury to itself as a result of the challenged action, then the controversy cannot but already be ripe for adjudication.

In the expanded judicial power, any citizen of the Philippines to whom the assailed law or rule is shown to apply necessarily has locus standi since a constitutional violation constitutes an affront or injury to the affected citizens of the country. If at all, a less stringent requirement of locus standi only needs to be shown to differentiate a justiciable case of this type from the pure or mere opinion that courts cannot render.

The traditional rules on hierarchy of courts and transcendental importance, far from being grounds for the dismissal of the petition raising the question of unconstitutionality, are necessarily reduced to rules relating to the level of court that should handle the controversy, as directed by the Supreme Court.

Thus, all courts have the power of expanded judicial review, but only when a petition involves a matter of transcendental importance should it be directly filed before this Court. Otherwise, the Court may either dismiss the petition or remand it to the appropriate lower court, based on its consideration of the urgency, importance, or the evidentiary requirements of the case.

In other words, petitions in order to successfully invoke the Courts power of expanded judicial review must satisfy two essential requisites: first, they must demonstrate a prima facie showing of grave abuse of discretion on the part of the governmental bodys actions; and second, they must prove that they relate to matters of transcendental importance to the nation.


The first requirement establishes the need for the Courts exercise of expanded judicial review powers; the second requirement justifies direct recourse to the Court and a relaxation of standing requirements." (Underscoring supplied; citations removed)

105. Measured by the foregoing standards, that is, the demonstration of a prima facie showing of grave abuse of discretion on the part of the government and the existence of matters which are of transcendental importance to the nation, the Petition has sufficiently proven the need for the exercise of the judicial power of review.

SUBSTANTIAL ISSUES

I. THE PRESIDENT COMMITTED GRAVE ABUSE OF DIS-CRETION WHEN HE ENTERED INTO THE EDCA WITHOUT COMPLYING WITH THE REQUIREMENTS UNDER SECTION 21, ARTICLE VII AND SECTION 25, ARTICLE XVIII OF THE CONSTITUTION.

A. THE EDCA IS A TREATY OR AN INTERNATIONAL AGREEMENT THAT REQUIRES SENATE CONCURRENCE.

i. The status of EDCA as a treaty or a mere executive agreement has no bearing for purposes of compliance with Section 21, Article VII of the Constitution.

--------------------------------------------------

106. The respondents, in an effort to circumvent the requirements of the Constitution, argue that the EDCA is a mere executive agreement and not a treaty; allegedly, therefore, senate concurrence is not required.

107. At the outset, it is submitted that the characterization of EDCA as a treaty or an executive agreement has no bearing for purposes of being an international instrument that is valid and effective upon the Philippine government.


108. In international law, there is no difference between treaties, executive agreements, and other international agreement as to their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers.18

109. Under the Vienna Convention on the Law of Treaties, the distinction has no bearing since an international agreement has the binding and enforceable effect of a treaty regardless of its name.

110. Thus, Section 1 (a), Article 2 of the aforesaid Vienna Convention defines treaty as an international agreement concluded between State 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.19

111. On this phrase, author Anthony Aust noted that the content of an instrumentnot its namedetermines the status of the instrument as one having a binding character under international law:

It is often more a matter of the practice of international organisations or groups of states, or political preference, which determines how a treaty is named. But whatever the position may have been in the nineteenth and early twentieth centuries, in itself the name does not determine the status of the instrument; what is decisive is whether the negotiating states intend the instrument to be (or not to be) binding in international law. Thus, just as one should never judge a book by its cover, one should never assume that the name given to an international instrument automatically indicates its status either as a treaty or as an MOU. Although it is reasonable to assume that an instrument called a treaty, agreement or a convention is a treaty, one should nevertheless examine the text to make quite sure.20

18 Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959]19 Emphasis supplied.20 Modern Treaty Law and Practice, page 20 (Cambridge University Press, Third Edition 2013). Emphasis supplied.


112. An examination of the text of EDCA reveals all the hallmarks of the Parties intention to be bound in obligations under interna-tional law. In the preambular clauses, they refer to the UN Charter, international conventions, and their previous bilateral agreementsall of which are considered treaties following the Vienna Convention. They also invoke doctrines of international law such as the principles of self-help and settlement of con-flicts by peaceful means, on paper, at least, as the purpose of EDCA.

113. Petitioners note that even a lead member of the Philippine ne-gotiating panel for the EDCA confirms that the treaty status of an agreement is determined by its content and not its designa-tion. In his Philippine Treaty Law and Practice, Ambassador Eduardo Malaya wrote:

The title of the instrument does not determine the nature of the instrument. What is determinative is the intent of the negotiating states to be legally-binding or not. It is only by examining its specific provisions can its real nature be established.21

114. Second, the particular status of EDCA has also no bearingeven within the sphere of domestic lawon the issue of its validity and effectivity, considering the 1987 Constitutions all-encompassing, non-distinguishing language:

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.22

115. This provision should be read with Executive Order No. 459, series of 1997,23 which defines executive agreements as simil-ar to treaties except that they do not require legislative concur-rence.24 Treaties, on the other hand, are those international agreements that require legislative concurrence after executive ratification.25 International agreement, therefore, subsumes

21 Co-authored with Maria Antonina Mendoza-Oblena. Published in the Integrated Bar of the Philippines Journal. , Vol. 35, No. 1, August 2010.22 Section 21, Article VII.23 Providing for the Guidelines in the Negotiation of International Agreements and [Their] Ratification, 25 November 1997.24 Section 2 (c).25 Section 2 (b).


treaties and executive agreements, being the general concept for instruments having international character.

116. It is submitted that following this general constitutional provision on international instruments, all international agreements, treat-ies and executive agreements, are not valid and effective ex-cept if these instruments are concurred in by the Senate. Peti-tioners echo the view espoused by Senator Miriam De-fensor-Santiago, Chairperson of the Senate Committee on For-eign Relations, at the hearing conducted by the Senate on the EDCA December 1, 2014:

Today, let us start, first of all, with the provision on the Constitution on x xxArticle VII, Section 21, No treaty or international agreementKaya mahirap itong intindihin. Ano ang agreement o dokumento na hindi pwedeng pumunta sa Senado because the Constitution uses the very broad phrase or international agreement.Ano pang agreement ang hindi pwede diyan. No treaty.O maliwanag tayo, pag treaty hindi pwede. Pero pati international agreement.No treaty, no international agreement shall be valid and effective...hindi lamang valid or effective kung hindi valid and effective... unless concurred in by at least twothirds of the members of the Senate. Ay di ibig sabihin pala kung baligtarin mo ito kung walang concurrenceand be careful, x xx we do not ratify a treaty. It is the President who ratifies a treaty and the Senate merely concurs with the ratification. Having clarified that, let us pay very careful attention to the wording of our Constitution since it says, No treaty or international agreement shall valid and effective. Both valid and effective are words you find here. So both the validity, the effectivity depends on the concurrence of the Senate. Ibig sabihin, kung walang concurrence ang Senado, walang validity at walang effectivity.26

117. Following Senator Santiagos view, therefore, EDCA, whether treaty or executive agreement, is neither valid nor effective absent and prior to the Senate concurrence. Therefore, in the eyes of the Constitution, EDCA is invalid and ineffective, or at the very least, presently in suspended animation, to borrow

26 Inquiry, in Aid of Legislation, on the Enhanced Defense Cooperation Agreement (EDCA) held on 1 December 2014.Pages 6, Transcript of Stenographic Notes and hereto attached as Annex A


the words of Former Senator Saguisag, one of the Petitioners herein and also a resource person in said hearing.27

ii. The EDCA must be in the form of a treaty duly concurred in by the Senate.--------------------------------------------

118. The issue of EDCAs particular statuswhether a treaty or an executive agreementarises in relation to the necessity of the application of the other constitutional provision on international instruments, this time, the specific law governing foreign military bases, troops, or facilities or Section 25 of Article XVIII.

119. Respondents insist that this provision on international instru-ments and the strict requirements thereunder do not apply to EDCA because the same is a mere executive agreement.28

120. First, Petitioners dispute Respondents characterization of EDCA. In the case of Commissioner of Customs v. Eastern Sea Trading, 29 the Honorable Court made a distinction of what can be covered by treaties as compared to executive agreements. Thus,

[I]nternational agreements involving political issues or changes of national policy and those involving international arrange-ments of a permanent character usually take the form of treat-ies [while] those embodying adjustments of detail carrying out well established national policies and traditions and those in-volving arrangements of a more or less temporary nature take the form of executive agreements.

121. Furthermore, DFA Office Order No. 01-2007 also listed the cat-egories of agreements which by practice have been treated as treaties and thus requiring Presidential ratification and Senate concurrence before they can enter into force: 30

a. Status of Forces Agreements/Visiting Forces Agreement;

27 Page 55, TSN Senate hearing hereto attached as Annex A-128 Pages 10 and 15, Consolidated Comment of the Office of the Solicitor General.29 G.R. No. L-14279, 1961.30J. Eduardo Malaya and Maria Antonina Mendoza-Oblena, Philippine Treaty Law and Practice, Integrated Bar of the Philippines Journal, 35: 1, August 2010, pp. 117.


b. Free Trade Agreement/Economic Partnership Agreement (which go beyond what the President is allowed to undertake unilaterally under Article VI Sec. 28 (2) of the Constitution and the Customs and Tariff Code);

c. Avoidance of Double Taxation Agreements (since tax exemp-tions may be made only under the authority of Congress, Art-icle VI Sec. 28 (4) of the Constitution);

d. Headquarters Agreement (due to immunity aspects);e. Extradition Agreements;f. Transfer of Sentenced Persons Agreements (in as much as

Philippine criminal jurisdiction is based on the principle of territoriality);

g. Other agreements, especially multilateral conventions, in-volving political issues or changes of national policy and in-volve international arrangement of a permanent character (Eastern Sea Trading ruling).31

122. Executive Order (E.O.) 459 also provides the guidelines in the negotiation of international agreements and its ratification. It states that as a matter of policy, the negotiation of all treaties and executive agreements shall be coordinated with, and made only with the participation of the DFA.32

123. It is submitted that the characterization of the Executive Branch of an instrument as an executive agreement, to be binding upon the entire government, should be done officially following E.O. No. 459:

Section 9. Determination of the Nature of the Agreement. The Department of Foreign Affairs shall determine whether an agreement is an executive agreement or a treaty.

124. It is further submitted that the specification by the Executive Branch of a certain device by which it officially determines the nature of an agreement it enters into excludes other means, such as bare declarations that an instrument is a mere execut-ive agreement.

125. Respondents have not submitted to the Court such an official determination. The people are left to rely on the Executives bare allegationand a hollow one because such characteriza-tion is merely claimed, divorced from the actual context and

31 DFA Office Order No. 01-2007, in Malaya, note 156.32 Executive Order No. 459 (2005), 1.


substance of the instrumentthat EDCA is a mere executive agreement.

126. During the oral arguments, in fact, the Solicitor General gave the Court a mere assumption that Section 9 was complied with:

ASSOCIATE JUSTICE REYES:

[I]n 1997, Executive Order 459 was issued and under Section 9 thereof, the Department of Foreign Affairs determines the nature of an agreement. My question is, were these procedures complied with before the EDCA was signed by the Secretary of National Defense?

ACTING SOLICITOR GENERAL HILBAY:I have to assume, Your Honor, that under E.O. 459, the Secretary of Foreign Affairs had made a declaration that the EDCA is an executive agreement.33

127. Second, a submission as to the proper reading of the Constitu-tion: What activates the application of Section 25 of Article XVIII and all its strict requirements is the nature or substance of any post -1991 MBA agreement as one concerning foreign milit-ary bases, troops, or facilitiesnot the agreements designation on paper as an Agreement x xx Enhanced Defense Coopera-tion or on bare public statements that EDCA is a mere execut-ive agreement.

128. The concept of international agreements under the coverage of Section 25 is not dependent on the practice between the politic-al departments, as the OSG would have it.34 This postion gives undue import to the mere "practice of groups of states, or polit-ical preference, to use Austs words, instead of the actual nature of international agreements, and makes the require-ments of the Constitution secondary to artificial factors and con-siderations of politics.

129. E.O. 459 does not consider the concept of treaty dependent on the parties characterization, more so the Constitution. Other-wise, Section 25, along with the peoples will against war and foreign presence and aspirations for sovereignty and national interest, all of which are the very reasons behind Section 25,

33 TSN of Oral Arguments, 25 November 2014, pages 132 to 133.34 Ibid., page 23.


will be rendered vulnerable to and even negated by the whims and artifices of these political departments.

130. Petitioners submit, therefore, that where an agreement con-cerns foreign military bases, troops, or facilities, such agree-ment should be in the form of a treaty and must go through the rigors of Section 25, Article XVIII of the Constitution.

131. Indeed, the fundamental laws strict general prohibition against foreign military presence must not be swept aside through in-vocation of mere artifices in names and myths that hide actual facts and dispute historical context, such as the false designa-tions given to EDCA (an executive agreement that merely im-plements VFA), the myth of Philippine ownership of Agreed Locations per the control test put forth by the OSG,35 and the myth of temporary or rotational presence of American milit-ary forces on Philippine soil.

The Secretary of the Department of National Defense has no power and authority to enter into international agreements.------------------------------------------------------

132. The Department of National Defense (DND) acts officially through its head, the Secretary of National Defense.36

35 Ibid., at page 9. 36 Doctrine of Qualified Political Agency. Manalang-Demigillo v. Trade and Investment Development Corporation of the Philippines, G.R. No. 168613, 5 March 2013, citing Villena v. The Secretary of the Interior, 67 Phil. 451, 463-464 (1939). The doctrine of qualified political agency essentially postulates that the heads of the various executive departments are the alter egos of the President, and, thus, the actions taken by such heads in the performance of their official duties are deemed the acts of the President unless the President himself should disapprove such acts. This doctrine is in recognition of the fact that in our presidential form of government, all executive organizations are adjuncts of a single Chief Executive; that the heads of the Executive Departments are assistants and agents of the Chief Executive; and that the multiple executive functions of the President as the Chief Executive are performed through the Executive Departments. The doctrine has been adopted here out of practical necessity, considering that the President cannot be expected to personally perform the multifarious functions of the executive office.


133. The Secretary of National Defense is a member of the National Security Council, the Executive Committee 37 thereof, and is also the Chairman of the General Military Council.38

134. The DND is tasked to formulate programs and policies necessary to maintain the integrity of the State and to guard against external and internal threats.39

135. Through supposedly sound advice and accurate information, the DND assists the President to arrive at the appropriate

37 Executive Order 292, Revised Administrative Code, Title VIII, Subtitle I, Chapter 2, National Security Council XXXXXSECTION 2. Declaration of Policies. (1) The formulation of integrated and rationalized national, foreign, military, political, economic, social and educational policies, programs, and procedures vital to the security of the state. (2) The national interest requires that an agency exist to formulate and adopt policies, programs, and procedures on all matters pertaining to or affecting the national security so that judgments and actions thereon by the President may rest on sound advice and accurate information. SECTION 3. Mandate. The National Security Council shall serve as the lead agency of the government for coordinating the formulation of policies, relating to or with implications on the national security. SECTION 4. Composition. The National Security Council, hereinafter referred to as Council, shall be composed of the President as Chairman, the Vice-President, the Secretary of Foreign Affairs, the Executive Secretary, the Secretary of National Defense, the Secretary of Justice, the Secretary of Labor and Employment, the Secretary of Local Governments, the National Security Director, the Chief of Staff of the Armed Forces of the Philippines (AFP), and such other government officials and private individuals as the President may appoint. SECTION 5. Powers and Functions. In addition to such specific duties and responsibilities as the President may direct, the Council shall: (1) Advise the President with respect to the integration of domestic, foreign, military, political, economic, social, and educational policies relating to the national security so as to enable all concerned departments and agencies of the government to meet more effectively, problems and matters involving the national security; (2) Evaluate and analyze all information, events, and incidents in terms of the risks they pose or implications upon or threats to the overall security and stability of the nation, for the purpose of recommending to the President appropriate action thereon; (3) Formulate and coordinate the implementation of policies on matters of common interest to the various departments, and agencies of the government concerned with the national security, and make recommendations to the President in connection therewith; (4) Insure that policies adopted by the Council on national security are effectively and efficiently implemented; and (5) Make such recommendations or render such other reports as the President may from time to time require. SECTION 6. Executive Committee. The Council shall have an Executive Committee composed of the President as Chairman, and the Vice-President and Secretary of Foreign Affairs, the Executive Secretary, the Secretary of National Defense, the National Security Director, the Chief of Staff of the Armed Forces of the Philippines and such other members or advisers as the President may appoint from time to time. The Executive Committee shall review national security and defense problems and formulate positions or solutions for consideration by the Council. It shall determine the agenda and order of business of the Council, and shall ensure that decisions of the Council are clearly communicated to the agencies involved. It shall advise the President on the implementation of decisions.


judgment and actions based on the formulated policies affecting national security.

136. A plain reading of the entire Title VIII on National Defense of Executive Order 292 (EO 292), otherwise known as the Revised Administrative Code, grants no power or authority unto the Secretary of National Defense to conclude international agreements.

137. The Secretary of National Defense is tasked merely to formulate policies relating to national security and to advise the President on these matters on the basis of reliable information.

138. The Doctrine of Qualified Political Agency states that the acts of Department Heads are deemed the acts of the Chief Executive but only to the extent that they are acting within their designated functions.

139. As held in Villena v. The Secretary of the Interior,40

140. The doctrine of qualified political agency essentially postulates that the heads of the various executive departments are the alter egos of the President, and, thus, the actions taken by such heads in the performance of their official duties are deemed the acts of the President unless the President himself should disapprove such acts. XXXXX

141. Since the Secretary of National Defense is not empowered or authorized under the Revised Administrative Code to enter into

To carry out the functions of the Executive Committee, the Chairman shall utilize the facilities and expertise of any of the government agencies and instrumentalities and shall promulgate rules and regulations to govern the operations of the Executive Committee.38 Executive Order 292, Revised Administrative Code, Title VIII, Subtitle II, Chapter 1, Section 16. General Military Council. The General Military Council shall advise and assist the Secretary in the formulation of military policies and shall consider and report on such other matters as the Secretary may direct. The Council shall be composed of the Secretary as Chairman; and the Undersecretary of National Defense, the Chief of Staff, the Vice-chief of Staff, the Assistant Chief of Staff of the Armed Forces of the Philippines, and the Commanders of the Major Services, as members. The Deputy Chief of Staff of the Armed Forces of the Philippines shall be the Secretary of the Council. 39 Executive Order 292, Revised Administrative Code, Title VIII, Subtitle II, Chapter 1, Section 15. Declaration of Policy. The defense establishment shall be maintained to maximize its effectiveness for guarding against external and internal threats to national peace and security and provide support for social and economic development. 40 67 Phil. 451, 463-464 (1939).


treaties or executive agreements, it is clear that he overstepped his prerogatives and any actions in this regard are ultra vires.

142. Even if the President were somehow to validate the Secretary of National Defenses actions in acceding to the EDCA, the said document still runs afoul of the 1987 Philippine Constitution due to non-compliance with the requirements for a basing agreement under Article XVII, Section 25 as fully explained and elaborated upon in the herein Petitions and the Oral Arguments conducted.

B. THE EDCA IS NOT AN IMPLEMENTING AGREEMENT OF THE MDT AND THE VFA

143. Respondents argue that the EDCA is just an implementing agreement of the MDT and the VFA. And since the Senate had already given its concurrence to both the MDT and the VFA, it is no longer necessary to obtain Senate concurrence for EDCA.

144. According to the respondents, Article II of the MDT which states that the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective ca-pacity to resist armed attack authorizes the Philippines and the United States to enter into implementing agreements to under-take what respondents refer to as defensive preparation activ-ities.

145. The EDCA, respondents argue, merely implements such de-fensive preparation activities already authorized under the MDT. Such claim has no factual and legal basis.

146. It must be emphasized that the defensive preparation activit-ies that respondents claim to have been authorized by the MDT and merely implemented by EDCA are activities that necessit-ate the presence of US military troops and facilities in the country.

147. As provided for under Article III of EDCA:

1. With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United State forces, United States contractors, and vehicles, vessels, and


aircraft operated by or for United State forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such other activities as the Parties may agree.

148. Given the variety and extent of such activities that respondents claim to have already been authorized by the MDT more than sixty years ago, it is necessary to look into the situation when the MDT was entered into by the Philippines and the United States.

149. And what stands out is that the MDT was entered into at a time when there was no prohibition on foreign military bases, troops or facilities that is now found in Section 25 Article XVIII of the Constitution. As aptly noted by Dean Merlin Magallona, (t)he prohibition is not qualified by any means as to how the treaty is related to any existing agreement.41

150. Under the present Constitution, even granting for the sake of argument that the EDCA is not a basing agreement, whatever claimed defensive preparation activities are allowed under the MDT which would necessitate the presence of foreign military troops or facilities in the country ARE NO LONGER ALLOWED after 1991 unless the presence of such foreign military troops or facilities are provided for in 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.

151. Given this prohibition, the implementing agreement argument put forth by the respondents totally ignores the fact that between the MDT and the EDCA, the overwhelming majority of the Filipino people ratified the 1987 Constitution.

41 From his paper A Critical Review of the Enhanced Defense Cooperation Agreement Between the Philippines and USA a copy of which is hereto attached as Annex B.


152. Simply put, the presence of US military troops or facilities can never be allowed by a mere implementing agreement of the MDT as argued by the respondents.

153. Respondents also argue that the EDCA is an implementing agreement of the VFA. According to respondents, the presence of US military troops and equipment are already authorized by the VFA. Furthermore, respondents argue that the activities to be undertaken under EDCA are within the ambit of the VFA as ruled in the case of Lim vs. Executive Secretary (G.R. No. 151445, April 11, 2002). In this case, the Honorable Court ruled that the term activities under the VFA were deliberately made ambiguous to give both parties a certain leeway in negotiation...Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized.

154. A plain reading of the text of EDCA will easily reveal that it is not simply an implementing agreement of the VFA. The following are matters that are covered by EDCA but are not provided for under the VFA:

a. First, under Article I of the VFA, only US military and civilian personnel are allowed admission into the Philippines in connection with activities covered by the VFA. Under EDCA, however, in addition to US military and civilian personnel, US contractors 42 are also authorized to conduct activities enumerated in Article III No. 1 of the EDCA. They are given unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel.43 Furthermore United States contractors may carry out such matters in accordance with, and to the extent permissible under, United States laws, regulations, and policies.44

b. Second, the VFA has NO provision authorizing access to Agreed Locations provided for by EDCA.45 These Agreed

42 Article II No. 3 EDCA43 Article IV No. 4 EDCA44 Article IV No. 5 EDCA45 Article I No. 1 (b); Article II No. 4; Article III EDCA


Locations, or any portion thereof, shall be returned to the Philippines ONCE NO LONGER REQUIRED BY UNITED STATES FORCES FOR ACTIVITIES under EDCA.46 Furthermore, EDCA provides that the United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense including taking appropriate measures to protect United States forces and United States contractors.47

c. Third, the VFA has NO provision authorizing the United States to undertake construction activities48 of non-relocatable structures and assemblies49, and permanent buildings50. These non-relocatable structures and assemblies, like the buildings, are permanent in character and are included in the Agreed Locations that shall be returned to the Philippines once no longer required by the United States forces. These non-relocatable structures and assemblies that the United States are allowed to construct under EDCA can rightfully be classified as foreign military facilities that come within the prohibition of Section 25 Article XVIII of the Constitution.

d. Fourth, while the VFA contains provisions on the importation and exportation of equipment, supplies, materials and other property in connection with the activities under the VFA, it has NO provision authorizing the United States to preposition and store defense equipment, supplies and materiel.51 These prepositioned materiel shall be for the exclusive use of United States forces to which they shall have control over the access to and disposition of... and shall have the unencumbered right to remove.., at any time from the territory of the Philippines.52

e. Fifth, the VFA has NO provision granting the United States forces and United States contractors the use of water, electricity, and other public utilities less charges or taxes and similar fees, which shall be for the account of the Philippine Government.53

46 Article V No. 2 EDCA47 Article VI No. 3 EDCA48 Article III No. 4 and 6 EDCA49 Article V No. 2 EDCA50 Article V No. 4 EDCA51 Article IV No. 1 EDCA52 Article IV No. 3 EDCA53 Article VII No. 2 EDCA


f. Sixth, Article V of the VFA provides for criminal jurisdiction of US personnel in the Philippines for activities under the VFA and Article VI provides that both the governments of the Philippines and the United States waive any and all claims against each other for damage or destruction of property of each others armed forces or for death or injury to their military or civilian personnel from activities to which the VFA applies. Article XI of EDCA on the other hand provides an encompassing provision as the Parties agree to resolve any dispute arising under this Agreement exclusively through consultation. (emphasis supplied)

155. As mentioned earlier, even a textual comparison of the EDCA and the VFA will readily show that the EDCA provides for matters that are not provided for by the VFA. On this score alone, the respondents argument that the EDCA merely implement the VFA clearly does not have a leg to stand on.

156. With respect to the respondents contention that the activities to b

Final Memoranda of EDCA Case

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Transcript of Final Memoranda of EDCA Case