G.R. No.
218390, February 28, 2018 - HONGKONG BANK INDEPENDENT existing loans and adverse information on outside loans will be considered
LABOR UNION (HBILU), Petitioner, v. HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED, Respondent.
THIRD DIVISION
G.R. No. 218390, February 28, 2018
HONGKONG BANK INDEPENDENT LABOR UNION
(HBILU), Petitioner, v. HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, Respondent.
DECISION
VELASCO JR., J.:
The Case
For consideration is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court questioning the Decision1 and Resolution of the Court of
Appeals (CA), dated October 23, 2014 and May 21, 2015, respectively, in
CA-G.R. SP No. 130798. The challenged rulings sustained the validity of
the external credit check as a condition before respondent could grant the
application for salary loans of petitioner's members. This is
notwithstanding the non-mention of the said condition in the parties'
Collective Bargaining Agreement (CBA).
The Facts
In 2001, the Bangko Sentral ng Pilipinas (BSP) issued the Manual of
Regulations for Banks (MoRB). Relevant to the instant case is Section
X338 thereof which reads:
Banks may provide financial assistance to their officers and employees, as
part of their fringe benefits program, to meet housing, transportation,
household and personal needs of their officers and employees. Financing
plans and amendments thereto shall be with prior approval of the
BSP. (emphasis added)
Pursuant to the above-cited provision, respondent Hongkong and Shanghai
Banking Corporation Limited (HSBC), on March 12, 2003, submitted its
Financial Assistance Plan (Plan) to the BSP for approval. The Plan allegedly
contained a credit checking proviso stating that "[r]epayment defaults on
in the evaluation of loan applications." The BSP approved the Plan on May
5, 2003.2 Said Plan was later amended thrice,3 all of which amendments
were approved by the BSP.4
Meanwhile, petitioner Hongkong Bank Independent Labor Union (HBILU),
the incumbent bargaining agent of HSBC's rank-and-file employees,
entered into a CBA with the bank covering the period from April 1, 2010 to
March 31, 2012. Pertinent to the instant petition is Article XI thereof,
which reads:
Article XI
Salary Loans
Section 1. Housing/house Improvement Loan. The BANK, or other financial
institution when appropriate, shall extend housing loan to qualified
employees with at least three (3) YEARS OF SERVICE, UP TO One Million
Five Hundred Thousand Pesos (P1,500,000.00) payable in twenty-five (25)
years or up to the retirement date of the employee, whichever comes first.
Subject to BSP approval, an additional Five Hundred Thousand Pesos
(P500,000.00) can be availed subject to the terms above with interest rate
at the BLR less 3% but not less than six percent (6%) per annum.
Section 2. Personal Loans. The BANK, or the Retirement Trust Fund Inc. or
other financial institutions, when appropriate, shall extend personal loan to
qualified employees, with at least 1 year service, up to six months basic
pay of the employees at six percent (6%) interest per annum, payable in
three years.
Section 3. Car Loans. The BANK, or the Retirement Trust Fund Inc. or
other financial institutions when appropriate, shall extend a car loan to
qualified employees with at least 3 years service up to Five Hundred Fifty
Thousand Pesos (PHP550,000.00) payable in seven (7) years. Interest rate
shall be six percent (6%) per annum.
Section 4. Credit Ratio. The availment of any of the foregoing loans shall
be subject to the BANK's credit ratio policy.
When the CBA was about to expire, the parties started negotiations for a
new one to cover the period from April 1, 2012 to March 31, 2017. During
the said negotiations, HSBC proposed amendments to the above quoted
Article XI allegedly to align the wordings of the CBA with its BSP approved
Plan. Particularly, HSBC proposed the deletion of Article XI, Section 4
(Credit Ratio) of the CBA, and the amendment of Sections 1 to 3 of the
same Article to read as follows:
Article XI
Salary Loans

Section 1. Housing/house Improvement Loan. Based on the Financial
Assistance Plan duly approved by Bangko Sentral ng Pilipinas
(BSP), the BANK, or other financial institution when appropriate, shall
extend housing loan to qualified employees with at least three (3) YEARS
OF SERVICE UP TO One Million Five Hundred Thousand Pesos
(P1,500,000.00) payable in twenty-five (25) years or up to the retirement
date of the employee, whichever comes first, subject to employee's
credit ratio. An additional Five hundred thousand Pesos (P500,000.00)
can be availed subject to the terms above with interest rates at the BLR
less 3% but not less than six percent (6%) per annum.
Section 2. Personal Loans. Based on the financial Assistance Plan duly
approved by Bangko Sentral ng Pilipinas (BSP), the BANK, or other
financial institutions when appropriate, shall extend personal loan to
qualified employees, with at least 1 year service, up to six months basic
pay of the employees at six percent (6%) interest per annum, payable in
three (3) years, subject to employee's credit ratio.
Section 3. Car loans. Based on the Financial Assistance Plan duly
approved by Bangko Sentral ng Pilipinas (BSP), the BANK, or other
financial institutions when appropriate, shall extend a car loan to qualified
employees with at least three years service, up to Five Hundred Fifty
Thousand Pesos (PHP550,000.00) payable in seven (7) years. Interest rate
shall be six percent (6%) per annum. (emphasis added)
HBILU vigorously objected to the proposed amendments, claiming that
their insertions would curtail its members' availment of salary loans. This,
according to the Union, violates the existing exceptions set forth in BSP
Circular 423, Series of 2004,[5 and Section X338.3[6 of the MoRB. In view
of HBILU's objection, HSBC withdrew its proposed amendments and,
consequently, Article XI remained unchanged.
Despite the withdrawal of the proposal, HSBC sent an e-mail to its
employees on April 20, 2012 concerning the enforcement of the Plan,
including the Credit Checking provisions thereof. The e-mail reads:
Dear All
We wish to reiterate the following provisions included in the Financial
Assistance Plan (FAP) as approved by Bangko Sentral ng Pilipinas (BSP).
Note that the FAP is the official guideline and policy governing Staff Loans
and Credit Cards.
>>>>CREDIT CHECKING
Below are the specific provisions included in the FAP regarding credit
checking.
Housing Loan, Car Loan, Personal Loan & Repayment defaults on existing
Computer/Club Membership/Medical loans and adverse information
Equipment Loan considered in the evaluation of
loan applications.
Credit Card Repayment defaults on existing
loans and adverse information
considered in the evaluation of
loan applications.
With the strict implementation of these provisions, adverse credit findings
may result to disapproval of loan or credit card applications. These findings
will include the following:
(1) Frequency of confirmed ADA failure on staff/commercial loans and
credit cards (3 consecutive incidents within the past 6 months or 6
incidents within the past 12 months). Note that applications with
pending ADA for investigation will only be processed upon
confirmation of status (Confirmed or Reprieved);
(2) Adverse findings on HSBC cards; or
(3) Adverse findings from external credit checks. [7
Thereafter, in September 2012, HBILU member Vince Mananghaya
(Mananghaya) applied for a loan under the provisions of Article XI of the
CBA. His first loan application in March 2012 was approved, but adverse
findings from the external checks on his credit background resulted in the
denial of his September application.8 HBILU then raised the denial as a
grievance issue with the National Conciliation Mediation Board (NCMB). It
argued that the imposition of an additional requirement—the external
credit checking prior to approval of any loan application under Article XI of
the CBA—is not sanctioned under the CBA. The Union emphasized that
under the terms of Article XI, there is no such requirement and that it
cannot, therefore, be unilaterally imposed by HSBC.
Justifying its denial of the loan application, HSBC countered that the
external credit check conducted in line with Mananghaya's loan application
was merely an implementation of the BSP-approved Plan. The adoption of
the Plan, HSBC stressed, is a condition sine qua non for any loan grant
under Section X338 of the MoRB. Moreover, the Credit Check policy has
been in place since 2003, and is a sound practice in the banking industry
to protect the interests of the public and preserve confidence in banks.
The issue was then submitted for resolution by the NCMB Panel of
Accredited Voluntary Arbitrators (the Panel).9 In the interim, the parties,
on September 29, 2012, inked a new CBA for the period covering April 1,
2012 up to March 31, 2017.10
NCMB-PVA Decision
On May 17, 2013, the Panel rendered a Decision finding for HSBC. It held
that herein respondent, as an employer, has the right to issue and
implement guidelines for the availment of loan accommodations under the
CBA as part of its management prerogative. The repeated use of the term
"qualified employees" in Article XI of the CBA was deemed indicative of
room for the adoption of further guidelines in the availment of the benefits
thereunder. The Panel also agreed that HSBC's Plan is not a new policy as
it has already been approved by the BSP as early as 2003. Thus, the Panel
ruled that the salary loan provisions under Article XI of the CBA must be
read in conjunction with the provisions of the Plan.
The Panel further discussed that HSBC's adoption of the Plan was not done
for any whimsical or arbitrary reason, but because the bank was
constrained to comply with Section X338 of the MoRB. As a banking
institution, HSBC cannot divorce itself from the regulatory powers of the
BSP. Observance of Section X338 of the MoRB was then necessary before
the bank could have been allowed to extend loan accommodations to its
officers and employees.
On the basis thereof, the Panel held that they are not ready to rule that
HSBC's Plan violates Article XI of the CBA.
Aggrieved, HBILU elevated the case to the CA.
CA Decision
The CA sustained the findings and conclusions of the NCMB-PVA in toto on
the ratiocination that HSBC was merely complying with Section X338 of
the MoRB when it submitted the Plan to BSP. When BSP, in turn, approved
the said Plan, HSBC became legally bound to enforce its provisions,
including the conduct of external credit checks on its loan applicants. 11 The
appellate court further ruled that the Plan should be deemed incorporated
in the CBA because it is a regulatory requirement of BSP without which the
salary loan provisions of the CBA are rendered inoperative.
Petitioner's motion for reconsideration having been denied by the CA thru
its May 21, 2015 Resolution, HBILU now seeks recourse from this Court.
The Issues
HBILU presents the following grounds to warrant the reversal of the
assailed Decision, viz:
The decisions and resolutions of the Hon. Panel of Voluntary Arbitrators
and the Hon. Court of Appeals are tainted with grave abuse of discretion
and it showed patent errors in the appreciation of facts which led to wrong
conclusions of law; or stated otherwise;
The Hon. Panel of Voluntary Arbitrators and Court of Appeals committed
serious, reversible and gross error in law in ruling that the Bank's Financial
Assistance Plan as not in violation of Article XI of the Parties' CBA revision
on Salary Loans (Article XII of the new and existing CBA) 12
Simply put, the issue for Oui resolution is whether or not HSBC could
validly enforce the credit-checking requirement under its BSP-approved
Plan in processing the salary loan applications of covered employees even
when the said requirement is not recognized under the CBA.
Arguments of Petitioner
In support of its position, HBILU argues, among others, that HSBC failed to
present in court the Plan that was supposedly submitted to the BSP for
approval, and to show that the requirement of external credit checking had
already been included therein.13 Too, said Plan is not a set of policies for
salary loans that came from the BSP, but was devised solely by HSBC. 14
Furthermore, HBILU claims that it is not privy to the Plan and has not been
consulted, much less informed, of the impositions therein prior to its
implementation. No proof was offered that the Plan had been disseminated
to the employees prior to the April 20, 2012 e-mail blast. 15
Lastly, the implementation of the Plan, according to HBILU, is tantamount
to diminution of benefits16 and a unilateral amendment of the existing
CBA,17 which are both proscribed under the Labor Code. Had the parties to
the CBA intended to include the external credit check as an additional
condition to the availment of employee salary loans, then it should have
been plainly provided in their agreement. 18
Arguments of Respondent
In its Comment, HSBC claims that the Plan is neither new nor was it issued
on a mere whim or caprice. On the contrary, the Plan was established as
early as 2003, way before Mananghaya's application was denied, to
conform to Section X338 of the BSP MoRB. HSBC reminds the Court that
the loan and credit accommodations could have only formed part of the
employees' fringe benefit program if they were extended through a
financing scheme (i.e., the Plan) approved by the BSP.
Moreover, HSBC argues that the dissemination of the Plan via e-mail blast
on April 20, 2012 was but a reiteration, as opposed to a first publication. It
contends that even prior to the establishment and approval of the Plan in
2003, the then-loan policy already included the requirement on external
credit checking. According to the bank, there was already a provision that
required the conduct of credit checking in the processing and evaluation of
loan applications in their General Policies on Loans, cascaded through the
Intranet system to HSBC employees on October 24, 2002, viz:
CREDIT CHECKING
Repayment defaults on existing loans and
adverse information on outside loans will be
considered in the evaluation of loan
applications.
The union members cannot then feign ignorance of the external credit
checking requirement in staff loan applications, according to HSBC.
Consequently, petitioner's bare denial of any knowledge about it cannot be
given any credence. Considering too that the Plan reiterating the
requirement has been approved by the BSP in 2003, HBILU slept on its
rights when it questioned its strict imposition almost a decade after its
issuance.
Finally, HSBC postulates that the non-mention of the Plan in the CBA is no
justification for the bank to disregard the same in processing employee
loan applications. Provisions of applicable laws, especially those relating to
matters affected with public policy, are deemed written into the contract. 19
Our Ruling
The petition is meritorious.
The constitutional right of employees
to participate in matters affecting
their benefits and the sanctity of the CBA
Preliminarily, it is crucial to stress that no less than the basic law of the
land guarantees the rights of workers to collective bargaining and
negotiations as well as to participate in policy and decision-making
processes affecting their rights and benefits. Section 3, Article XIII of the
1987 Constitution provides:
Section 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including
the right to strike in accordance with law. They shall be entitled to security
of tenure, humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their rights
and benefits as may be provided by law.
Pursuant to said guarantee, Article 211 of the Labor Code, as amended,
declares it a policy of the State:
(a) To promote and emphasize the primacy of free collective
bargaining and negotiations, including voluntary arbitration, mediation
and conciliation, as modes of settling labor or industrial disputes;
xxxx
(d) To promote the enlightenment of workers concerning their
rights and obligations as union members and as employees;
xxxx
(g) To ensure the participation of workers in decision and policy-
making processes affecting their rights, duties and welfare.
(Emphasis ours)
Corollary thereto, Article 255 of the same Code provides:
ART. 255. EXCLUSIVE BARGAINING REPRESENTATION AND WORKERS
PARTICIPATION IN POLICY AND DECISION-MAKING.
xxxx
Any provision of law to the contrary notwithstanding, workers shall have
the right,subject to such rules and regulations as the Secretary of Labor
and Employment may promulgate, to participate in policy and
decision-making process of the establishment where they are
employed insofar as said processes will directly affect their
rights, benefits and welfare. For this purpose, workers and employers
may form labor-management councils: Provided, That the representatives
of the workers in such labor management councils shall be elected by at
least the majority of all employees in said establishment. (Emphasis and
underscoring ours)
We deem it necessary to remind HSBC of the basic and well entrenched
rule that although jurisprudence recognizes the validity of the exercise by
an employer of its management prerogative and will ordinarily not
interfere with such, this prerogative is not absolute and is subject to
limitations imposed by law, collective bargaining agreement, and
general principles of fair play and justice.20
Indeed, being a product of said constitutionally-guaranteed right to
participate, the CBA is, therefore, the law between the parties and they
are obliged to comply with its provisions.
Unilateral amendments to the CBA
violate Article 253 of the Labor Code
A collective bargaining agreement or CBA is the negotiated contract
between a legitimate labor organization and the employer concerning
wages, hours of work and all other terms and conditions of employment in
a bargaining unit. As in all contracts, the parties in a CBA may establish
such stipulations, clauses, terms and conditions as they may deem
convenient provided these are not contrary to law, morals, good customs,
public order or public policy. Thus, where the CBA is clear and
unambiguous, it becomes the law between the parties and compliance
therewith is mandated by the express policy of the law. 21
In Faculty Association of Mapua Institute of Technology (FAMJT) v. Court
of Appeals,22 this Court was emphatic in its pronouncement that the CBA
during its lifetime binds all the parties. The provisions of the CBA must
be respected since its terms and conditions constitute the law
between the parties. And until a new CBA is executed by and
between the parties, they are duty-bound to keep the status
quo and to continue in full force and effect the terms and
conditions of the existing agreement.23 This finds basis under Article
253 of the Labor Code, which states:
ARTICLE 253. Duty to bargain collectively when there exists a
collective bargaining agreement. – When there is a collective
bargaining agreement, the duty to bargain collectively shall also mean
that neither party shall terminate nor modify such agreement
during its lifetime. x x x It shall be the duty of both parties to keep
the status quo and to continue in full force and effect the terms
and conditions of the existing agreement during the 60-day period
and/or until a new agreement is reached by the parties. (emphasis
added)
In the present controversy, it is clear from the arguments and evidence
submitted that the Plan was never made part of the CBA. As a matter of
fact, HBILU vehemently rejected the Plan's incorporation into the
agreement. Due to this lack of consensus, the bank withdrew its proposal
and agreed to the retention of the original provisions of the CBA. The
subsequent implementation of the Plan's external credit check provisions
in relation to employee loan applications under Article XI of the CBA was
then an imposition solely by HSBC.
In this respect, this Court is of the view that tolerating HSBC's conduct
would be tantamount to allowing a blatant circumvention of Article 253 of
the Labor Code. It would contravene the express prohibition against the
unilateral modification of a CBA during its subsistence and even thereafter
until a new agreement is reached. It would unduly license HSBC to
add, modify, and ultimately further restrict the grant of Salary
Loans beyond the terms of the CBA by simply adding stringent
requirements in its Plan, and having the said Plan approved by BSP
in the guise of compliance with the MoRB.
HSBC's defense, that there was no modification of the CBA since the
external credit check has been a long-standing policy of the Bank applied
to all of its employees, is inconvincing. Noteworthy is that the bank failed
to submit in evidence the very Plan that was supposedly approved by the
BSP in 2003. Nevertheless, even if We were to rely on the later versions of
the Plan approved by the BSP, Our ruling will not change.
The only provision relative to the credit checking requirement under the
2006 and 2011 Plans is this and nothing else:
CREDIT CHECKING
Repayment defaults on existing loans and
adverse information on outside loans will be
considered m the evaluation of loan
applications.24
As for the manner in which said credit checking will be done, as well as
any additional requirements that will be imposed for the purpose, the 2006
Plan and even its later 2011 version are silent thereon. 25 Nowhere in these
Plans can We find the requirement for the submission of an "Authority to
Conduct Checks Form," as well as the details on adverse credit finding,
specifically:
With the strict implementation of these provisions, adverse credit findings
may result to disapproval of loan or credit card applications. These findings
will include the following:
(1) Frequency of confirmed ADA failure on staff/commercial loans and
credit cards (3 consecutive incidents within the past 6 months or 6
incidents within the past 12 months). Note that applications with
pending ADA for investigation will only be processed upon
confirmation of status (Confirmed or Reprieved);
(2) Adverse findings on HSBC cards; or

(3) Adverse findings from external credit checks. [26
In fact, regrettably, HSBC's only documentary basis for proving that the
credit checking requirement and the manner of its enforcement have been
set in place much earlier is the use of the term "reiterate" in its April 20,
2012 e-mail. Thus, we quote:
Dear All
We wish to reiterate the following provisions included in the Financial
Assistance Plan (FAP) as approved by Bangko Sentral ng Pilipinas (BSP).
xxx
20. Accordingly, the above email dated 20 April 2012 clearly
indicates that the dissemination therein of the FAP and its
provisions is merely a reiteration, and not a first publication as the
Union now conveniently claims.27 x x x (emphasis supplied)
What further convinces Us that the external credit check as well as the
manner of its enforcement is a new imposition by HSBC is the fact that the
bank made no attempt to rebut HBILU's evidence that the former's
requirements for the grant of salary loans changed only after the
April 20, 2012 email blast. HBILU sufficiently proved that prior to the
April 20, 2012 email, members of the bargaining unit were using
only four (4) documents in applying for a loan, to wit: 1) Application
for Personal Loan Form; 2) Authority to Deduct Form; 3) Set-Off of
Retirement Fund Form; and 4) Promissory Note Form. 28 Thereafter,
management imposed a new set of requirements, which includes the
"Authority to Conduct Checks Form."29 As testified to by Mananghaya, he
only signed the first four (4) requirements for his March 2012 loan.
However, for the September 2012 loan, he was asked to complete a new
set of documents which included the Authority to Conduct Checks
Form.30 Too, even the email itself states that said credit checking
requirement, among others, is to be strictly enforced effective May
2012.31 Though HSBC claims that credit checking has been the bank's
long-standing policy, it failed to show that it indeed required such
before its covered employees could avail of a salary loan under the
CBA prior to April 20, 2012—the date of the email blast.
Thus, no other conclusion can be had in this factual milieu other than the
fact that HSBC's enforcement of credit checking on salary loans
under the CBA invalidly modified the latter's provisions thereon
through the imposition of additional requirements which cannot be
found anywhere in the CBA.
If it were true that said credit checking under the Plan covers salary loans
under the CBA, then the bank should have negotiated for its inclusion
thereon as early as the April 1, 2010 to March 31, 2012 CBA which it
entered into with HBILU. However, the express provisions of said CBA
inked by the parties clearly make no reference to the Plan. And even in the
enforcement thereof, credit checking was not included as one of its
requirements. This leads Us to conclude that HSBC originally never
intended the credit checking requirement under the Plan to apply to salary
loans under the CBA. At most, its application thereto is a mere
afterthought, as evidenced by its sudden, belated, and hurried
enforcement on said salary loans via the disputed email blast.
In other words, it appears that, based on its actuations, HSBC never
intended to apply the credit checking item under the Plan to salary loans
under the CBA. Otherwise, it would have enforced such requirement from
the moment the salary loans provisions under the old CBA were
implemented, which it did not. It may be that said requirement was being
applied to other types of loans under the Plan, but based on the evidence
presented, We cannot say the same for salary loans under the CBA.
The minority argues that primacy is being accorded to the CBA over the
Plan approved by the BSP. Such, however, is not the case. We are not
saying that the Plan should yield to the CBA. The point that we are driving
at in this lengthy discussion is that on the basis of the evidence presented,
We are convinced that the credit checking provision of the Plan was never
intended to cover salary loans under the CBA. Otherwise, HSBC would
have implemented such the moment said salary loans under the previous
CBA were made available to its covered employees. Thus, HSBC cannot
now insist on its imposition on loan applications under the disputed CBA
provision without violating its duty to bargain collectively.
If We were to allow this practice of leaving to HSBC the determination,
formulation, and implementation of the guidelines, procedures, and
requirements for the availment of salary loans granted under the CBA,
which guidelines, procedures, and requirements unduly restrict the
provisions of the CBA, this Court would in effect be permitting HSBC to
repeatedly violate its duty to bargain collectively under the guise of
enforcing the general terms of the Plan.
Salary loans subject of this case are
not covered by the credit checking
requirement under the MORB
In maintaining that the credit checking requirement under the MoRB
should be deemed written into the CBA, the minority makes reference to
Sec. X304.1 of the 2011 MoRB in maintaining that financial institutions
must look into the obligor's repayment history, among other things, before
approving a loan application. Said provision reads:
§ X304.1 General guidelines. Consistent with safe and sound banking
practices, a bank shall grant loans or other credit accommodations only in
amounts and for the periods of time essential for the effective completion
of the operation to be financed. Before granting loans or other credit
accommodations, a bank must ascertain that the borrower, co-maker,
endorser, surety, and/or guarantor, if applicable, is/are financially capable
of fulfilling his/their commitments to the bank. For this purpose, a bank
shall obtain adequate information on his/their credit standing and financial
capacities x x x.
At this point it is well to draw attention to the fact that said provision is a
general one as specifically indicated thereat. It is also equally important to
emphasize that Sec. X304.1 must be interpreted in conjunction with
Section X338.3, the provision which specifically applies to salary loans
under the fringe benefit program of the bank. Thus:
Subsection X338.3 Other conditions/limitations
The investment by a bank in equipment and other chattels under its fringe
benefits program for officers and employees shall be included in
determining the extent of the investment of the bank in real estate and
equipment for purposes of Section 51 of R.A. No. 8791.
The investment by a bank in equipment and other chattels contemplated
under these guidelines shall not be for the purpose of profits in the course
of business for the bank.
All loans or other credit accommodations to bank officers and
employees, EXCEPT those granted under the fringe benefit
program of the bank, shall be subject to the same terms and
conditions imposed on the regular lending operations of the
bank. Loans or other credit accommodations granted to officers shall, in
addition, be subject to the provisions of Section 36 of R.A. No. 8791 and
Sections X326 to X336 but not to the individual ceilings where such loans
or other credit accommodations are obtained under the bank's fringe
benefits program. (emphasis ours)
In specifying that "[a]ll loans or other credit accommodations to bank
officers and employees, except those granted under the fringe benefit
program of the bank, shall be subject to the same terms and conditions
imposed on the regular lending operations of the bank," Sec. X338.3
clearly excluded loans and credit accommodations under the
bank's fringe benefits program from the operation of Sec.
X304.1. This fact is even recognized in the dissent. To ignore this clear
exception and insist on interpreting the general guidelines under Section
X304.1 would be to renege from Our duty to apply a clear and
unambiguous provision.32
It may also be argued that HSBC, being a bank, is statutorily required to
conduct a credit check on all of its borrowers, even though it be made
under a loan accommodation scheme, applying Section 40[33 of Republic
Act No. (RA) 8791 (General Banking Law of 2000). A reading of RA 8791,
however, reveals that loan accommodations to employees are not covered
by said statute. Nowhere in the law does it state that its provisions shall
apply to loans extended to bank employees which are granted under the
latter's fringe benefits program. Had the law intended otherwise, it could
have easily specified such, similar to what was done for directors, officers,
stockholders and their related interests under Section 36 thereof. This
conclusion is supported by the very wording of Subsection X338.3 of the
MORB. To reiterate:
Subsection X338.3 Other conditions/limitations
The investment by a bank in equipment and other chattels under its fringe
benefits program for officers and employees shall be included in
determining the extent of the investment of the bank in real estate and
equipment for purposes of Section 51 of R.A. No. 8791.
The investment by a bank in equipment and other chattels contemplated
under these guidelines shall not be for the purpose of profits in the course
of business for the bank.
All loans or other credit accommodations to bank officers and employees,
except those granted under the fringe benefit program of the bank, shall
be subject to the same terms and conditions imposed on the regular
lending operations of the bank. Loans or other credit accommodations
granted to officers shall, in addition, be subject to the provisions of
Section 36 of R.A. No. 8791 and Sections X326 to X336 but not to the
individual ceilings where Such loans or other credit accommodations are
obtained under the bank's fringe benefits program.
Notably, even though the provision covers loans extended to both bank
officers and employees, paragraph 3 thereof singled out loans and credit
accommodations granted to officers when it provided for the applicability
of RA 8791.
What the law does not include, it excludes.
These convince Us to conclude that RA 8791 only intended to cover loans
by third persons and those extended to directors, officers, stockholders
and their related interests. Consequently, Section 40 thereof, which
requires a bank to ascertain that the debtor is capable of fulfilling his
commitments to it before granting a loan or other credit accommodation,
does not automatically apply to the type of loan subject of the instant
case.
Furthermore, it is inaccurate to state that credit checking is necessary, or
even indispensable, in the grant of salary loans to the bank's employees,
since the business of banking is imbued with public interest and there is a
fiduciary relationship between the depositor and the bank. It is also
incorrect to state that allowing bank employees to borrow funds from their
employer via salary loans without the prior conduct of a credit check is
inconsistent with this fiduciary obligation. This is so because there are
other ways of securing payment of said salary loans other than
ascertaining whether the borrowing employee has the capacity to pay the
loan. BSP Circular 423, Series of 2004 itself provides for such, thus:
Subsection X338.1 Mechanics. The mechanics of such financing plan shall
have the following minimum features:
Participation shall be limited to full-time and permanent officers and
employees of the bank;
xxxx
The bank shall adopt measures to protect itself from losses such as
by incorporating in the plan or contract provisions requiring co-
makers or co-signor, chattel, or real estate mortgages, fire
insurance, mortgage redemption insurance, assignment of money
value of leave credits, pension or retirement benefits.(Emphasis
ours)
Additionally, both the BSP Circular 423, Series of 2004 and Section X338.3
of the MoRB provide for a safeguard in order to protect the funds of the
Bank's depositors while allowing the Bank to extend such benefits to its
employees, in that both require that:
The aggregate outstanding loans and other credit accommodations
granted under the bank's fringe benefits program, inclusive of
those granted to officers in the nature of lease with option to
purchase, shall not exceed five percent (5%) of the bank's total
loan portfolio.34
There are, therefore, sufficient safety nets consistent with the bank's
fiduciary duty to its depositors even without requiring the conduct of an
external credit check in the availment of salary loans under the subject
CBA. As a matter of fact, there is no showing that the bank's finances
suffered because it has been granting said salary loans under the CBA
without the external credit check.
Withal, We cannot subscribe to HSBC's position that its imposition of the
credit checking requirement on salary loans granted under the CBA is
valid. The evidence presented convinces Us to hold that the credit
checking requirement imposed by HSBC under the questioned Plan
which effectively and undoubtedly modified the CBA provisions on
salary loans was a unilateral imposition violative of HSBC's duty to
bargain collectively and, therefore, invalid. HSBC miserably failed to
present even an iota of concrete documentary evidence that the credit
checking requirement has been imposed on salary loans even before the
signing of the CBA subject of the instant dispute and that the Plan was
sufficiently disseminated to all concerned. In contrast, HBILU sufficiently
proved that HSBC violated its duty to bargain collectively under Article 253
of the Labor Code when it unilaterally restricted the availment of salary
loans under Article XI of the CA on the excuse of enforcing the Plan
approved by the BSP.
As this Court emphasized in Philippine Airlines, Inc. v. NLRC, industrial
peace cannot be achieved if the employees are denied their just
participation in the discussion of matters affecting their rights, 35more so
in the case at bar where the employees have been led to believe
that they were given the chance to participate in HSBC's policy-
formulation with respect to the subject benefit, only to find out
later that they would be deprived of the fruits of said involvement.
On interpretation of CBAs
At this point, We deem it proper to recall the basics in resolving issues
relating to the provisions and enforcement of CBAs. In United Kimberly-
Clark Employees Union Philippine Transport General Workers Organization
(UKCEU-PTGWO) v. Kimberly-Clark Philippines, Inc., this Court
emphasized that:
As a general proposition, an arbitrator is confined to the interpretation and
application of the collective bargaining agreement. He does not sit to
dispense his own brand of industrial justice: his award is legitimate only in
so far as it draws its essence from the CBA, i.e., when there is a rational
nexus between the award and the CBA under consideration. It is said that
an arbitral award does not draw its essence from the CBA; hence, there is
an unauthorized amendment or alteration thereof, if:
1. It is so unfounded in reason and fact;
2. It is so unconnected with the working and purpose of the
agreement;
3. It is without factual support in view of its language, its
context, and any other indicia of the parties' intention;
4. It ignores or abandons the plain language of the contract;
 5. It is mistakenly based on a crucial assumption which concededly is WHEREFORE, premises considered, the petition is GRANTED. The
a nonfact; Decision dated October 23, 2014 and Resolution dated May 21, 2015 of
the Court of Appeals in CA-G.R. SP No. 130798 are
6. It is unlawful, arbitrary or capricious; and hereby REVERSEDand SET ASIDE.

Respondent Hongkong and Shanghai Banking Corporation's Financial

7. It is contrary to public policy.
Assistance Plan, insofar as it unilaterally imposed a credit checking proviso
on the availment of Salary Loans by its employees under Article XI of the
xxxx
2010-2012 CBA, is hereby declared legally ineffective and invalid for being
in contravention of Article 253 of the Labor Code.

If the terms of a CBA are clear and [leave] no doubt upon the intention of SO ORDERED.
the contracting parties, the literal meaning of its stipulation shall prevail.
However, if, in a CBA, the parties stipulate that the hirees must be Bersamin, Martires, and Gesmundo, JJ., concur.
presumed of employment qualification standards but fail to state such Leonen, J., see separate opinion.
qualification standards in said CBA, the VA may resort to evidence
extrinsic of the CBA to determine the full agreement intended by
the parties. When a CBA may be expected to speak on a matter,
but does not, its sentence imports ambiguity on that subject. The
VA is not merely to rely on the cold and cryptic words on the face
of the CBA but is mandated to discover the intention of the
parties. Recognizing the inability of the parties to anticipate or address all
future problems, gaps may be left to be filled in by reference to the
practices of the industry, and the step which is equally a part of the CBA
although not expressed in it. In order to ascertain the intention of the
contracting parties, their contemporaneous and subsequent acts
shall be principally considered The VA may also consider and rely
upon negotiating and contractual history of the parties, evidence
of past practices interpreting ambiguous provisions. The VA has to
examine such practices to determine the scope of their agreement,
as where the provision of the CBA has been loosely
formulated. Moreover, the CBA must be construed liberally rather than
narrowly and technically and the Court must place a practical and realistic
construction upon it.36 (emphasis ours)

Thus, in resolving issues concerning CBAs, We must not forget that the
foremost consideration therein is upholding the intention of both parties as
stated in the agreement itself, or based on their negotiations. Should it
appear that a proposition or provision has clearly been rejected by one
party, and said provision was ultimately not included in the signed CBA,
then We should not simply disregard this fact. We are duty-bound to
resolve the question presented, albeit on a different ground, so long as it
is consistent with law and jurisprudence and, more importantly, does not
ignore the intention of both parties. Otherwise, We would be substituting
Our judgment in place of the will of the parties to the CBA.

With these, We find no need to resolve the other matters presented.


EN BANC
G.R. No. 135385 December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,
vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF
BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE
NATIONAL COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA,
EDTAMI MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS,
ALFREMO CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS,
NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-
BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. LUMANDONG,
DATU MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO BANDA,
DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY
MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG
MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY,
BAY INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T.
PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-
CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG,
TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G.
PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL,
LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES
MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G.
DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR,
MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B.
GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO
O. SULATAN, RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB,
MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL
S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S.
SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG
MALID, MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO,
MORENO MALID, MARIO MANGCAL, FELAY DIAMILING, SALOME P. SARZA,
FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA
MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T.
BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L.
MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID,
represented by her father CORNELIO MALID, MARCELINO M. LADRA,
represented by her father MONICO D. LADRA, JENNYLYN MALID, represented
by her father TONY MALID, ARIEL M. EVANGELISTA, represented by her mother
LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA
BATO B'LAAN TRIBAL FARMER'S ASSOCIATION, INTER-PEOPLE'S
EXCHANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE
CONSERVATION OF NATURAL RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and
mandamus as citizens and taxpayers, assailing the constitutionality of certain
provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenous
Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations
(Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to
comment.1 In compliance, respondents Chairperson and Commissioners of the
National Commission on Indigenous Peoples (NCIP), the government agency created
under the IPRA to implement its provisions, filed on October 13, 1998 their Comment
to the Petition, in which they defend the constitutionality of the IPRA and pray that the
petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and
Natural Resources (DENR) and Secretary of the Department of Budget and
Management (DBM) filed through the Solicitor General a consolidated Comment. The
Solicitor General is of the view that the IPRA is partly unconstitutional on the ground
that it grants ownership over natural resources to indigenous peoples and prays that
the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one
of the authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986
Constitutional Commission, and the leaders and members of 112 groups of
indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. They join
the NCIP in defending the constitutionality of IPRA and praying for the dismissal of
the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion
to Intervene and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an
expression of the principle of parens patriae and that the State has the responsibility
to protect and guarantee the rights of those who are at a serious disadvantage like
indigenous peoples. For this reason it prays that the petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and
the Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon, et
al.), filed a motion to Intervene with attached Comment-in-Intervention. They agree
with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray
that the petition for prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors
filed their respective memoranda in which they reiterate the arguments adduced in
their earlier pleadings and during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its
Implementing Rules on the ground that they amount to an unlawful deprivation of the
State’s ownership over lands of the public domain as well as minerals and other
natural resources therein, in violation of the regalian doctrine embodied in Section 2,
Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and
Section 3(b) which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral domains
including inalienable public lands, bodies of water, mineral and other resources found
within ancestral domains are private but community property of the indigenous
peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of
ancestral domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples
over the ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples
over the ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in the
harvesting, extraction, development or exploration of minerals and other natural
resources within the areas claimed to be their ancestral domains, and the right to
enter into agreements with nonindigenous peoples for the development and utilization
of natural resources therein for a period not exceeding 25 years, renewable for not
more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain,
develop, protect and conserve the ancestral domains and portions thereof which are
found to be necessary for critical watersheds, mangroves, wildlife sanctuaries,
wilderness, protected areas, forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing definition of
"ancestral domains" and "ancestral lands" which might even include private lands
found within said areas, Sections 3(a) and 3(b) violate the rights of private
landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers and
jurisdiction of the NCIP and making customary law applicable to the settlement of
disputes involving ancestral domains and ancestral lands on the ground that these
provisions violate the due process clause of the Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of delineation and
recognition of ancestral domains and which vest on the NCIP the sole
authority to delineate ancestral domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP that a
particular area is an ancestral domain and upon notification to the following
officials, namely, the Secretary of Environment and Natural Resources,
Secretary of Interior and Local Governments, Secretary of Justice and
Commissioner of the National Development Corporation, the jurisdiction of
said officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of
indigenous peoples shall be applied first with respect to property rights,
claims of ownership, hereditary succession and settlement of land disputes,
and that any doubt or ambiguity in the interpretation thereof shall be
resolved in favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices shall be used
to resolve disputes involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and
disputes involving rights of the indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP
Administrative Order No. 1, series of 1998, which provides that "the administrative
relationship of the NCIP to the Office of the President is characterized as a lateral but
autonomous relationship for purposes of policy and program coordination." They
contend that said Rule infringes upon the President’s power of control over executive
departments under Section 17, Article VII of the Constitution.6
Petitioners pray for the following:
 "(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 Attached hereto and made integral parts thereof are the separate opinions of Justices
and other related provisions of R.A. 8371 are unconstitutional and invalid; Puno, Vitug, Kapunan, Mendoza, and Panganiban.

"(2) The issuance of a writ of prohibition directing the Chairperson and SO ORDERED.
Commissioners of the NCIP to cease and desist from implementing the
assailed provisions of R.A. 8371 and its Implementing Rules; Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
"(3) The issuance of a writ of prohibition directing the Secretary of the Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion
Department of Environment and Natural Resources to cease and desist from
implementing Department of Environment and Natural Resources Circular
No. 2, series of 1998;

"(4) The issuance of a writ of prohibition directing the Secretary of Budget

and Management to cease and desist from disbursing public funds for the Footnotes
implementation of the assailed provisions of R.A. 8371; and
1
Rollo, p. 114.
"(5) The issuance of a writ of mandamus commanding the Secretary of
Environment and Natural Resources to comply with his duty of carrying out 2
Petition, Rollo, pp. 16-23.
the State’s constitutional mandate to control and supervise the exploration,
development, utilization and conservation of Philippine natural resources."7 3
Id. at 23-25.

After due deliberation on the petition, the members of the Court voted as follows: 4
Section 1, Article III of the Constitution states: "No person shall be deprived
of life, liberty or property without due process of law, nor shall any person be
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the denied the equal protection of the laws."
Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the
validity of the challenged provisions of R.A. 8371. Justice Puno also filed a separate 5
Rollo, pp. 25-27.
opinion sustaining all challenged provisions of the law with the exception of Section 1,
Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules and 6
Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends Id. at 27-28.
should be interpreted as dealing with the large-scale exploitation of natural resources
and should be read in conjunction with Section 2, Article XII of the 1987 Constitution. 7
Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp.
On the other hand, Justice Mendoza voted to dismiss the petition solely on the 5-6.
ground that it does not raise a justiciable controversy and petitioners do not have
standing to question the constitutionality of R.A. 8371.
The Lawphil Project - Arellano Law Foundation
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban
filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8,
and related provisions of R.A. 8371 are unconstitutional. He reserves judgment on the
constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must
await the filing of specific cases by those whose rights may have been violated by the
IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections SEPARATE OPINION
3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban
PUNO, J.:
and Vitug.

PRECIS
As the votes were equally divided (7 to 7) and the necessary majority was not
obtained, the case was redeliberated upon. However, after redeliberation, the voting
remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil
Procedure, the petition is DISMISSED.
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche IV. The Provisions of the IPRA Do Not Contravene the Constitution.
entitled "On the Uses and Disadvantages of History for Life." Expounding on
Nietzsche's essay, Judge Richard Posner1 wrote:2 A. Ancestral domains and ancestral lands are the private property of
indigenous peoples and do not constitute part of the land of the public
"Law is the most historically oriented, or if you like the most backward-looking, the domain.
most 'past-dependent,' of the professions. It venerates tradition, precedent, pedigree,
ritual, custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom, 1. The right to ancestral domains and ancestral lands: how
seniority, gerontocracy, and interpretation conceived of as a method of recovering acquired
history. It is suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy
and brashness of youth. These ingrained attitudes are obstacles to anyone who
wants to re-orient law in a more pragmatic direction. But, by the same 2. The concept of native title
token, pragmatic jurisprudence must come to terms with history."
(a) Cariño v. Insular Government
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it
introduced radical concepts into the Philippine legal system which appear to collide (b) Indian Title to land
with settled constitutional and jural precepts on state ownership of land and other
natural resources. The sense and subtleties of this law cannot be appreciated without (c) Why the Cariño doctrine is unique
considering its distinct sociology and the labyrinths of its history. This Opinion
attempts to interpret IPRA by discovering its soul shrouded by the mist of our history.
After all, the IPRA was enacted by Congress not only to fulfill the constitutional 3. The option of securing a torrens title to the ancestral land
mandate of protecting the indigenous cultural communities' right to their ancestral
land but more importantly, to correct a grave historical injustice to our indigenous B. The right of ownership and possession by the ICCs/IPs to their ancestral
people. domains is a limited form of ownership and does not include the right to
alienate the same.
This Opinion discusses the following:
1. The indigenous concept of ownership and customary law
I. The Development of the Regalian Doctrine in the Philippine Legal System.
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian
A. The Laws of the Indies Doctrine enshrined in Section 2, Article XII of the 1987 Constitution.

B. Valenton v. Murciano 1. The rights of ICCs/IPs over their ancestral domains and lands

C. The Public Land Acts and the Torrens System 2. The right of ICCs/IPs to develop lands and natural resources
within the ancestral domains does not deprive the State of
ownership over the natural resources, control and supervision in
D. The Philippine Constitutions their development and exploitation.

II. The Indigenous Peoples Rights Act (IPRA). (a) Section 1, Part II, Rule III of the Implementing Rules
goes beyond the parameters of Section 7(a) of the law on
A. Indigenous Peoples ownership of ancestral domains and is ultra vires.

1. Indigenous Peoples: Their History (b) The small-scale utilization of natural resources in
Section 7 (b) of the IPRA is allowed under Paragraph 3,
2. Their Concept of Land Section 2, Article XII of the 1987 Consitution.

III. The IPRA is a Novel Piece of Legislation. (c) The large-scale utilization of natural resources in
Section 57 of the IPRA may be harmonized with
A. Legislative History
 Paragraphs 1 and 4, Section 2, Article XII of the 1987
Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International
Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE
LEGAL SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's power
of dominium.3 This was the foundation for the early Spanish decrees embracing the
feudal theory of jura regalia. The "Regalian Doctrine" or jura regalia is a Western legal
concept that was first introduced by the Spaniards into the country through the
Laws of the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las
Indias, set the policy of the Spanish Crown with respect to the Philippine Islands in
the following manner:
"We, having acquired full sovereignty over the Indies, and all lands, territories, and
possessions not heretofore ceded away by our royal predecessors, or by us, or in our
name, still pertaining to the royal crown and patrimony, it is our will that all lands
which are held without proper and true deeds of grant be restored to us as they
belong to us, in order that after reserving before all what to us or to our viceroys,
audiencias, and governors may seem necessary for public squares, ways, pastures,
and commons in those places which are peopled, taking into consideration not only
their present condition, but also their future and their probable increase, and after
distributing to the natives what may be necessary for tillage and pasturage,
confirming them in what they now have and giving them more if necessary, all the rest
of said lands may remain free and unencumbered for us to dispose of as we may
wish.
We therefore order and command that all viceroys and presidents of pretorial courts
designate at such time as shall to them seem most expedient, a suitable period within
which all possessors of tracts, farms, plantations, and estates shall exhibit to them
and to the court officers appointed by them for this purpose, their title deeds thereto.
And those who are in possession by virtue of proper deeds and receipts, or by virtue
of just prescriptive right shall be protected, and all the rest shall be restored to us to
be disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently,
all lands became the exclusive patrimony and dominion of the Spanish Crown. The
Spanish Government took charge of distributing the lands by issuing royal grants and
concessions to Spaniards, both military and civilian.5 Private land titles could only be
acquired from the government either by purchase or by the various modes of land
grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law
of 1893.7 The Spanish Mortgage Law provided for the systematic registration of titles
and deeds as well as possessory claims. The law sought to register and tax lands
pursuant to the Royal Decree of 1880. The Royal Decree of 1894, or the "Maura
Law," was partly an amendment of the Mortgage Law as well as the Laws of the
Indies, as already amended by previous orders and decrees.8 This was the last
Spanish land law promulgated in the Philippines. It required the "adjustment" or
registration of all agricultural lands, otherwise the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the
government of the United States all rights, interests and claims over the national
territory of the Philippine Islands. In 1903, the United States colonial government,
through the Philippine Commission, passed Act No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v.
Murciano.9
Valenton resolved the question of which is the better basis for ownership of land:
long-time occupation or paper title. Plaintiffs had entered into peaceful occupation of
the subject land in 1860. Defendant's predecessor-in-interest, on the other hand,
purchased the land from the provincial treasurer of Tarlac in 1892. The lower court
ruled against the plaintiffs on the ground that they had lost all rights to the land by not
objecting to the administrative sale. Plaintiffs appealed the judgment, asserting that
their 30-year adverse possession, as an extraordinary period of prescription in
the Partidas and the Civil Code, had given them title to the land as against everyone,
including the State; and that the State, not owning the land, could not validly transmit
it.
The Court, speaking through Justice Willard, decided the case on the basis of "those
special laws which from earliest time have regulated the disposition of the public
lands in the colonies."10 The question posed by the Court was: "Did these special laws
recognize any right of prescription as against the State as to these lands; and if so, to
what extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the
disposition of land in the Philippines. However, it was understood that in the absence
of any special law to govern a specific colony, the Laws of the Indies would be
followed. Indeed, in the Royal Order of July 5, 1862, it was decreed that until
regulations on the subject could be prepared, the authorities of the Philippine Islands
should follow strictly the Laws of the Indies, the Ordenanza of the Intendentes of
1786, and the Royal Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de
las Indias, the court interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those
lands belong to the Crown which have not been granted by Philip, or in his name, or
by the kings who preceded him. This statement excludes the idea that there might
be lands not so granted, that did not belong to the king. It excludes the idea
that the king was not still the owner of all ungranted lands, because some private
person had been in the adverse occupation of them. By the mandatory part of the law
all the occupants of the public lands are required to produce before the authorities
named, and within a time to be fixed by them, their title papers. And those who had
good title or showed prescription were to be protected in their holdings. It is apparent
that it was not the intention of the law that mere possession for a length of time
should make the possessors the owners of the land possessed by them without any
action on the part of the authorities."12
The preamble stated that all those lands which had not been granted by Philip, or in
his name, or by the kings who preceded him, belonged to the Crown.13 For those
lands granted by the king, the decree provided for a system of assignment of such
lands. It also ordered that all possessors of agricultural land should exhibit their title
deed, otherwise, the land would be restored to the Crown.14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered
the Crown's principal subdelegate to issue a general order directing the publication of
the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the
date of the promulgation and publication of said order, shall have occupied royal
lands, whether or not x x x cultivated or tenanted, may x x x appear and exhibit to
said subdelegates the titles and patents by virtue of which said lands are occupied. x
x x. Said subdelegates will at the same time warn the parties interested that in case of
their failure to present their title deeds within the term designated, without a just and
valid reason therefor, they will be deprived of and evicted from their lands, and they
will be granted to others."15
On June 25, 1880, the Crown adopted regulations for the adjustment of lands
"wrongfully occupied" by private individuals in the Philippine
Islands. Valenton construed these regulations together with contemporaneous
legislative and executive interpretations of the law, and concluded that plaintiffs' case
fared no better under the 1880 decree and other laws which followed it, than it did
under the earlier ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he
proves a possession for a sufficient length of time, yet it has always insisted that he
must make that proof before the proper administrative officers, and obtain from
them his deed, and until he did that the State remained the absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in
force in these Islands by which the plaintiffs could obtain the ownership of these lands
by prescription, without any action by the State."17 Valenton had no rights other than
those which accrued to mere possession. Murciano, on the other hand, was deemed
to be the owner of the land by virtue of the grant by the provincial secretary. In effect,
Valenton upheld the Spanish concept of state ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish
Government from earliest times, requiring settlers on the public lands to obtain
title deeds therefor from the State, has been continued by the American
Government in Act No. 926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of
the the Philippine Bill of 1902. The law governed the disposition of lands of the public
domain. It prescribed rules and regulations for the homesteading, selling, and leasing
of portions of the public domain of the Philippine Islands, and prescribed the terms
and conditions to enable persons to perfect their titles to public lands in the Islands. It
also provided for the "issuance of patents to certain native settlers upon public lands,"
for the establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish concessions and
grants in the Islands." In short, the Public Land Act operated on the assumption that
title to public lands in the Philippine Islands remained in the government;19 and that
the government's title to public land sprung from the Treaty of Paris and other
subsequent treaties between Spain and the United States.20 The term "public land"
referred to all lands of the public domain whose title still remained in the government
and are thrown open to private appropriation and settlement,21 and excluded the
patrimonial property of the government and the friar lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land
Act. This new law was passed under the Jones Law. It was more comprehensive in
scope but limited the exploitation of agricultural lands to Filipinos and Americans and
citizens of other countries which gave Filipinos the same privileges.23 After the
passage of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present
Public Land Law and it is essentially the same as Act 2874. The main difference
between the two relates to the transitory provisions on the rights of American citizens
and corporations during the Commonwealth period at par with Filipino citizens and
corporations.24
Grants of public land were brought under the operation of the Torrens system
under Act 496, or the Land Registration Law of 1903. Enacted by the Philippine
Commission, Act 496 placed all public and private lands in the Philippines under the
Torrens system. The law is said to be almost a verbatim copy of the Massachussetts
Land Registration Act of 1898,25 which, in turn, followed the principles and procedure
of the Torrens system of registration formulated by Sir Robert Torrens who patterned it
after the Merchant Shipping Acts in South Australia. The Torrens system requires that
the government issue an official certificate of title attesting to the fact that the person
named is the owner of the property described therein, subject to such liens and
encumbrances as thereon noted or the law warrants or reserves.26 The certificate of
title is indefeasible and imprescriptible and all claims to the parcel of land are quieted
upon issuance of said certificate. This system highly facilitates land conveyance and
negotiation.27
D. The Philippine Constitutions
The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and
dominating objectives of the 1935 Constitutional Convention was the nationalization
and conservation of the natural resources of the country.28There was an
overwhelming sentiment in the Convention in favor of the principle of state
ownership of natural resources and the adoption of the Regalian
doctrine.29 State ownership of natural resources was seen as a necessary starting
point to secure recognition of the state's power to control their disposition,
exploitation, development, or utilization.30 The delegates to the Constitutional
Convention very well knew that the concept of State ownership of land and natural
resources was introduced by the Spaniards, however, they were not certain whether it
was continued and applied by the Americans. To remove all doubts, the Convention
approved the provision in the Constitution affirming the Regalian doctrine.31
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and
Utilization of Natural Resources," reads as follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
and other natural resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be limited to citizens
of the Philippines, or to corporations or associations at least sixty per centum
of the capital of which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government
established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or
lease for the exploitation, development, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the measure and the limit of the
grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on
the "National Economy and the Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, fisheries, wildlife, and other
natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential, and resettlement lands of the
public domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation, or
utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for not more than twenty-five
years, except as to water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, in which cases beneficial use may
be the measure and the limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on
"National Economy and Patrimony," to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may
directly undertake such activities or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such
terms and conditions as may be provided by law. In cases of water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land, belong to the
State. It is this concept of State ownership that petitioners claim is being
violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the
Rights of Indigenous Cultural Communities/ Indigenous Peoples, Creating a National
Commission on Indigenous Peoples, Establishing Implementing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The
Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities
or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants
these people the ownership and possession of their ancestral domains and
ancestral lands, and defines the extent of these lands and domains. The
ownership given is the indigenous concept of ownership under customary law
which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
 - the right to resolve conflict;32
- the right to ancestral lands which include
a. the right to transfer land/property to/among members of the
same ICCs/IPs, subject to customary laws and traditions of the
community concerned;
b. the right to redemption for a period not exceeding 15 years from
date of transfer, if the transfer is to a non-member of the ICC/IP and
is tainted by vitiated consent of the ICC/IP, or if the transfer is for an
unconscionable consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to
self-governance and empowerment,34 social justice and human rights,35 the right to
preserve and protect their culture, traditions, institutions and community intellectual
rights, and the right to develop their own sciences and technologies.36
To carry out the policies of the Act, the law created the National Commission on
Indigenous Peoples (NCIP). The NCIP is an independent agency under the Office of
the President and is composed of seven (7) Commissioners belonging to ICCs/IPs
from each of the ethnographic areas- Region I and the Cordilleras; Region II; the rest
of Luzon; Island groups including Mindoro, Palawan, Romblon, Panay and the rest of
the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and
Central Mindanao.37 The NCIP took over the functions of the Office for Northern
Cultural Communities and the Office for Southern Cultural Communities created by
former President Corazon Aquino which were merged under a revitalized structure.38
Disputes involving ICCs/IPs are to be resolved under customary laws and
practices. When still unresolved, the matter may be brought to the NCIP, which is
granted quasi-judicial powers.39 The NCIP's decisions may be appealed to the Court
of Appeals by a petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to,
unauthorized and/or unlawful intrusion upon ancestral lands and domains shall be
punished in accordance with customary laws or imprisoned from 9 months to 12
years and/or fined from ₱100,000.00 to ₱500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural
Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the
1987 Constitution while that of "IPs" is the contemporary international language in the
International Labor Organization (ILO) Convention 16941 and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of
people or homogeneous societies identified by self-ascription and ascription by
others, who have continuously lived as organized community on communally
bounded and defined territory, and who have, under claims of ownership since time
immemorial, occupied, possessed and utilized such territories, sharing common
bonds of language, customs, traditions and other distinctive cultural traits, or who
have, through resistance to political, social and cultural inroads of colonization, non-
indigenous religions and cultures, became historically differentiated from the majority
of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous
on account of their descent from the populations which inhabited the country, at the
time of conquest or colonization, or at the time of inroads of non-indigenous religions
and cultures, or the establishment of present state boundaries, who retain some or all
of their own social, economic, cultural and political institutions, but who may have
been displaced from their traditional domains or who may have resettled outside their
ancestral domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of
people or homogeneous societies who have continuously lived as an organized
community on communally bounded and defined territory. These groups of
people have actually occupied, possessed and utilized their territories under claim of
ownership since time immemorial. They share common bonds of language, customs,
traditions and other distinctive cultural traits, or, they, by their resistance to political,
social and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the Filipino majority. ICCs/IPs also include
descendants of ICCs/IPs who inhabited the country at the time of conquest or
colonization, who retain some or all of their own social, economic, cultural and
political institutions but who may have been displaced from their traditional territories
or who may have resettled outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon,
Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of
islands. They are composed of 110 tribes and are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian
or Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos
Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and
Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan;
Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal,
Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya
of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro;
Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.
 4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan,
Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines
Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and
Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the
Magahat of Negros Occidental; the Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi,
Zamboanga del Sur; the Kalibugan of Basilan, the Samal, Subanon and
Yakat.
8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the
Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of
Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur,
Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur,
Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan
provinces, and the Umayamnon of Agusan and Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes
of the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad,
T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur;
Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South
Cotabato; the Mangguangon of Davao and South Cotabato; Matigsalog of
Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South
Cotabato; and Bagobo of Davao del sur and South Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug,
Yakan/Samal, and Iranon.43
How these indigenous peoples came to live in the Philippines goes back to as
early as 25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely
by the Negritos, Indonesians and Malays.44 The strains from these groups eventually
gave rise to common cultural features which became the dominant influence in ethnic
reformulation in the archipelago. Influences from the Chinese and Indian civilizations
in the third or fourth millenium B.C. augmented these ethnic strains. Chinese
economic and socio-cultural influences came by way of Chinese porcelain, silk and
traders. Indian influence found their way into the religious-cultural aspect of pre-
colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering
became supplementary activities as reliance on them was reduced by fishing and the
cultivation of the soil.46 From the hinterland, coastal, and riverine communities, our
ancestors evolved an essentially homogeneous culture, a basically common way of
life where nature was a primary factor. Community life throughout the archipelago
was influenced by, and responded to, common ecology. The generally benign tropical
climate and the largely uniform flora and fauna favored similarities, not
differences.47 Life was essentially subsistence but not harsh.48
The early Filipinos had a culture that was basically Malayan in structure and form.
They had languages that traced their origin to the Austronesian parent-stock and
used them not only as media of daily communication but also as vehicles for the
expression of their literary moods.49 They fashioned concepts and beliefs about the
world that they could not see, but which they sensed to be part of their lives.50 They
had their own religion and religious beliefs. They believed in the immortality of the
soul and life after death. Their rituals were based on beliefs in a ranking deity whom
they called Bathalang Maykapal, and a host of other deities, in the environmental
spirits and in soul spirits. The early Filipinos adored the sun, the moon, the animals
and birds, for they seemed to consider the objects of Nature as something to be
respected. They venerated almost any object that was close to their daily life,
indicating the importance of the relationship between man and the object of nature.51
The unit of government was the "barangay," a term that derived its meaning from the
Malay word "balangay," meaning, a boat, which transported them to these
shores.52 The barangay was basically a family-based community and consisted of
thirty to one hundred families. Each barangay was different and ruled by a chieftain
called a "dato." It was the chieftain's duty to rule and govern his subjects and promote
their welfare and interests. A chieftain had wide powers for he exercised all the
functions of government. He was the executive, legislator and judge and was the
supreme commander in time of war.53
Laws were either customary or written. Customary laws were handed down
orally from generation to generation and constituted the bulk of the laws of the
barangay. They were preserved in songs and chants and in the memory of the elder
persons in the community.54 The written laws were those that the chieftain and his
elders promulgated from time to time as the necessity arose.55 The oldest known
written body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D.
Other old codes are the Muslim Code of Luwaran and the Principal Code of
Sulu.56 Whether customary or written, the laws dealt with various subjects, such as
inheritance, divorce, usury, loans, partnership, crime and punishment, property rights,
family relations and adoption. Whenever disputes arose, these were decided
peacefully through a court composed by the chieftain as "judge" and the barangay
elders as "jury." Conflicts arising between subjects of different barangays were
resolved by arbitration in which a board composed of elders from neutral barangays
acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of private
property in land. The chiefs merely administered the lands in the name of the
barangay. The social order was an extension of the family with chiefs embodying the
higher unity of the community. Each individual, therefore, participated in the
community ownership of the soil and the instruments of production as a member of
the barangay.58 This ancient communalism was practiced in accordance with the
concept of mutual sharing of resources so that no individual, regardless of status, was
without sustenance. Ownership of land was non-existent or unimportant and the
right of usufruct was what regulated the development of lands. 59 Marine
resources and fishing grounds were likewise free to all. Coastal communities
depended for their economic welfare on the kind of fishing sharing concept similar to
those in land communities.60 Recognized leaders, such as the chieftains and elders,
by virtue of their positions of importance, enjoyed some economic privileges and
benefits. But their rights, related to either land and sea, were subject to their
responsibility to protect the communities from danger and to provide them with the
leadership and means of survival.61
Sometime in the 13th century, Islam was introduced to the archipelago in
Maguindanao. The Sultanate of Sulu was established and claimed jurisdiction over
territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and
Zamboanga. Four ethnic groups were within this jurisdiction: Sama, Tausug, Yakan
and Subanon.62The Sultanate of Maguindanao spread out from Cotabato toward
Maranao territory, now Lanao del Norte and Lanao del Sur.63
The Muslim societies evolved an Asiatic form of feudalism where land was still
held in common but was private in use. This is clearly indicated in the Muslim
Code of Luwaran. The Code contains a provision on the lease of cultivated lands. It,
however, has no provision for the acquisition, transfer, cession or sale of land.64
The societies encountered by Magellan and Legaspi therefore were primitive
economies where most production was geared to the use of the producers and to the
fulfillment of kinship obligations. They were not economies geared to exchange and
profit.65 Moreover, the family basis of barangay membership as well as of leadership
and governance worked to splinter the population of the islands into numerous small
and separate communities.66
When the Spaniards settled permanently in the Philippines in 1565, they found
the Filipinos living in barangay settlements scattered along water routes and
river banks. One of the first tasks imposed on the missionaries and the
encomenderos was to collect all scattered Filipinos together in a reduccion.67 As early
as 1551, the Spanish government assumed an unvarying solicitous attitude towards
the natives.68 The Spaniards regarded it a sacred "duty to conscience and humanity
to civilize these less fortunate people living in the obscurity of ignorance" and to
accord them the "moral and material advantages" of community life and the
"protection and vigilance afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the church and
convent would be constructed. All the new Christian converts were required to
construct their houses around the church and the unbaptized were invited to do the
same.70 With the reduccion, the Spaniards attempted to "tame" the reluctant Filipinos
through Christian indoctrination using the convento/casa real/plaza complex as focal
point. The reduccion, to the Spaniards, was a "civilizing" device to make the Filipinos
law-abiding citizens of the Spanish Crown, and in the long run, to make them
ultimately adopt Hispanic culture and civilization.71
All lands lost by the old barangays in the process of pueblo organization as
well as all lands not assigned to them and the pueblos, were now declared to
be crown lands or realengas, belonging to the Spanish king. It was from
the realengas that land grants were made to non-Filipinos. 72
The abrogation of the Filipinos' ancestral rights in land and the introduction of
the concept of public domain were the most immediate fundamental results of
Spanish colonial theory and law.73 The concept that the Spanish king was the
owner of everything of value in the Indies or colonies was imposed on the
natives, and the natives were stripped of their ancestral rights to land.74
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious,
classified the Filipinos according to their religious practices and beliefs, and divided
them into three types . First were the Indios, the Christianized Filipinos, who
generally came from the lowland populations. Second, were the Moros or the Muslim
communities, and third, were the infieles or the indigenous communities.75
The Indio was a product of the advent of Spanish culture. This class was favored by
the Spaniards and was allowed certain status although below the Spaniards.
The Moros and infieles were regarded as the lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The Moros were
driven from Manila and the Visayas to Mindanao; while the infieles, to the
hinterlands. The Spaniards did not pursue them into the deep interior. The upland
societies were naturally outside the immediate concern of Spanish interest, and the
cliffs and forests of the hinterlands were difficult and inaccessible, allowing
the infieles, in effect, relative security.77 Thus, the infieles, which were peripheral to
colonial administration, were not only able to preserve their own culture but also
thwarted the Christianization process, separating themselves from the newly evolved
Christian community.78 Their own political, economic and social systems were kept
constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual
feeling of suspicion, fear, and hostility between the Christians on the one hand and
the non-Christians on the other. Colonialism tended to divide and rule an otherwise
culturally and historically related populace through a colonial system that exploited
both the virtues and vices of the Filipinos.79
President McKinley, in his instructions to the Philippine Commission of April 7,
1900, addressed the existence of the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should
adopt the same course followed by Congress in permitting the tribes of
our North American Indians to maintain their tribal organization and
government, and under which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling to
conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should
be exercised to prevent barbarous practices and introduce civilized customs."80
Placed in an alternative of either letting the natives alone or guiding them in the path
of civilization, the American government chose "to adopt the latter measure as one
more in accord with humanity and with the national conscience."81
The Americans classified the Filipinos into two: the Christian Filipinos and
the non-Christian Filipinos. The term "non-Christian" referred not to religious belief,
but to a geographical area, and more directly, "to natives of the Philippine Islands of a
low grade of civilization, usually living in tribal relationship apart from settled
communities."82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903,
they passed Act No. 253 creating the Bureau of Non-Christian Tribes
(BNCT). Under the Department of the Interior, the BNCT's primary task was to
conduct ethnographic research among unhispanized Filipinos, including those in
Muslim Mindanao, with a "special view to determining the most practicable means for
bringing about their advancement in civilization and prosperity." The BNCT was
modeled after the bureau dealing with American Indians. The agency took a keen
anthropological interest in Philippine cultural minorities and produced a wealth of
valuable materials about them.83
The 1935 Constitution did not carry any policy on the non-Christian Filipinos.
The raging issue then was the conservation of the national patrimony for the
Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a
more rapid and complete manner the economic, social, moral and political
advancement of the non-Christian Filipinos or national cultural minorities and to
render real, complete, and permanent the integration of all said national cultural
minorities into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy of
integration of indigenous peoples into the Philippine mainstream and for this purpose
created the Commission on National Integration (CNI).84 The CNI was given, more
or less, the same task as the BNCT during the American regime. The post-
independence policy of integration was like the colonial policy of assimilation
understood in the context of a guardian-ward relationship. 85
The policy of assimilation and integration did not yield the desired result. Like the
Spaniards and Americans, government attempts at integration met with fierce
resistance. Since World War II, a tidal wave of Christian settlers from the lowlands of
Luzon and the Visayas swamped the highlands and wide open spaces in
Mindanao.86Knowledge by the settlers of the Public Land Acts and the Torrens
system resulted in the titling of several ancestral lands in the settlers' names.
With government initiative and participation, this titling displaced several
indigenous peoples from their lands. Worse, these peoples were also displaced by
projects undertaken by the national government in the name of national
development.87
It was in the 1973 Constitution that the State adopted the following provision:
"The State shall consider the customs, traditions, beliefs, and interests of national
cultural communities in the formulation and implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes" or the "cultural
minorities" were addressed by the highest law of the Republic, and they were
referred to as "cultural communities." More importantly this time, their "uncivilized"
culture was given some recognition and their "customs, traditions, beliefs and
interests" were to be considered by the State in the formulation and implementation of
State policies. President Marcos abolished the CNI and transferred its functions to
the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was
tasked to integrate the ethnic groups that sought full integration into the larger
community, and at the same time "protect the rights of those who wish to preserve
their original lifeways beside the larger community."89 In short, while still adopting
the integration policy, the decree recognized the right of tribal Filipinos to
preserve their way of life.90
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as
the Ancestral Lands Decree. The decree provided for the issuance of land
occupancy certificates to members of the national cultural communities who were
given up to 1984 to register their claims.91 In 1979, the Commission on the
Settlement of Land Problems was created under E.O. No. 561 which provided a
mechanism for the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000
Kalingas and Bontoks of the Cordillera region were displaced by the Chico River dam
project of the National Power Corporation (NPC). The Manobos of Bukidnon saw their
land bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In Agusan del
Sur, the National Development Company was authorized by law in 1979 to take
approximately 40,550 hectares of land that later became the NDC-Guthrie plantation
in Agusan del Sur. Most of the land was possessed by the Agusan natives.93 Timber
concessions, water projects, plantations, mining, and cattle ranching and other
projects of the national government led not only to the eviction of the indigenous
peoples from their land but also to the reduction and destruction of their natural
environment.94
The Aquino government signified a total shift from the policy of integration to
one of preservation. Invoking her powers under the Freedom Constitution, President
Aquino created the Office of Muslim Affairs, Office for Northern Cultural
Communities and the Office for Southern Cultural Communities all under the
Office of the President.95
The 1987 Constitution carries at least six (6) provisions which insure the right
of tribal Filipinos to preserve their way of life.96 This Constitution goes further
than the 1973 Constitution by expressly guaranteeing the rights of tribal
Filipinos to their ancestral domains and ancestral lands. By recognizing their
right to their ancestral lands and domains, the State has effectively upheld their
right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino
mainstream. They are non-Christians. They live in less accessible, marginal, mostly
upland areas. They have a system of self-government not dependent upon the laws
of the central administration of the Republic of the Philippines. They follow ways of life
and customs that are perceived as different from those of the rest of the
population.97 The kind of response the indigenous peoples chose to deal with colonial
threat worked well to their advantage by making it difficult for Western concepts and
religion to erode their customs and traditions. The "infieles societies" which had
become peripheral to colonial administration, represented, from a cultural
perspective, a much older base of archipelagic culture. The political systems were still
structured on the patriarchal and kinship oriented arrangement of power and
authority. The economic activities were governed by the concepts of an ancient
communalism and mutual help. The social structure which emphasized division of
labor and distinction of functions, not status, was maintained. The cultural styles and
forms of life portraying the varieties of social courtesies and ecological adjustments
were kept constantly vibrant.98
Land is the central element of the indigenous peoples' existence. There is no
traditional concept of permanent, individual, land ownership. Among the Igorots,
ownership of land more accurately applies to the tribal right to use the land or to
territorial control. The people are the secondary owners or stewards of the land and
that if a member of the tribe ceases to work, he loses his claim of ownership, and the
land reverts to the beings of the spirit world who are its true and primary owners.
Under the concept of "trusteeship," the right to possess the land does not only belong
to the present generation but the future ones as well.99
Customary law on land rests on the traditional belief that no one owns the land
except the gods and spirits, and that those who work the land are its mere
stewards.100 Customary law has a strong preference for communal
ownership, which could either be ownership by a group of individuals or families who
are related by blood or by marriage,101 or ownership by residents of the same locality
who may not be related by blood or marriage. The system of communal ownership
under customary laws draws its meaning from the subsistence and highly
collectivized mode of economic production. The Kalingas, for instance, who are
engaged in team occupation like hunting, foraging for forest products, and swidden
farming found it natural that forest areas, swidden farms, orchards, pasture and burial
grounds should be communally-owned.102 For the Kalingas, everybody has a common
right to a common economic base. Thus, as a rule, rights and obligations to the land
are shared in common.
Although highly bent on communal ownership, customary law on land also
sanctions individual ownership.The residential lots and terrace rice farms are
governed by a limited system of individual ownership. It is limited because while
the individual owner has the right to use and dispose of the property, he does not
possess all the rights of an exclusive and full owner as defined under our Civil
Code.103 Under Kalinga customary law, the alienation of individually-owned land is
strongly discouraged except in marriage and succession and except to meet sudden
financial needs due to sickness, death in the family, or loss of crops.104 Moreover, and
to be alienated should first be offered to a clan-member before any village-member
can purchase it, and in no case may land be sold to a non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and social system.
The concept of individual land ownership under the civil law is alien to them.
Inherently colonial in origin, our national land laws and governmental policies
frown upon indigenous claims to ancestral lands. Communal ownership is
looked upon as inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous
peoples that the Tenth Congress of the Philippines, by their joint efforts, passed and
approved R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of 1997. The
law was a consolidation of two Bills- Senate Bill No. 1728 and House Bill No. 9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a
consolidation of four proposed measures referred to the Committees on Cultural
Communities, Environment and Natural Resources, Ways and Means, as well as
Finance. It adopted almost en toto the comprehensive version of Senate Bill Nos.
1476 and 1486 which was a result of six regional consultations and one national
consultation with indigenous peoples nationwide.108 At the Second Regular
Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave a
background on the situation of indigenous peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have long
suffered from the dominance and neglect of government controlled by the majority.
Massive migration of their Christian brothers to their homeland shrunk their territory
and many of the tribal Filipinos were pushed to the hinterlands. Resisting the
intrusion, dispossessed of their ancestral land and with the massive exploitation of
their natural resources by the elite among the migrant population, they became
marginalized. And the government has been an indispensable party to this insidious
conspiracy against the Indigenous Cultural Communities (ICCs). It organized and
supported the resettlement of people to their ancestral land, which was massive
during the Commonwealth and early years of the Philippine Republic. Pursuant to the
Regalian Doctrine first introduced to our system by Spain through the Royal Decree
of 13 February 1894 or the Maura Law, the government passed laws to legitimize the
wholesale landgrabbing and provide for easy titling or grant of lands to migrant
homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and
cared for the land long before any central government was established. Their
ancestors had territories over which they ruled themselves and related with other
tribes. These territories- the land- include people, their dwelling, the mountains, the
water, the air, plants, forest and the animals. This is their environment in its totality.
Their existence as indigenous peoples is manifested in their own lives through
political, economic, socio-cultural and spiritual practices. The IPs culture is the living
and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it;
and depending on it. Otherwise, IPs shall cease to exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively, Senator Flavier
proposed a bill based on two postulates: (1) the concept of native title; and (2) the
principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian
Doctrine reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional
laws" and jurisprudence passed by the State have "made exception to the doctrine."
This exception was first laid down in the case of Cariño v. Insular
Government where:
"x x x the court has recognized long occupancy of land by an indigenous member of
the cultural communities as one of private ownership, which, in legal concept, is
termed "native title." This ruling has not been overturned. In fact, it was affirmed in
subsequent cases."111
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D.
705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of
Muslim Mindanao). These laws, explicitly or implicitly, and liberally or restrictively,
recognized "native title" or "private right" and the existence of ancestral lands and
domains. Despite the passage of these laws, however, Senator Flavier continued:
"x x x the executive department of government since the American occupation has not
implemented the policy. In fact, it was more honored in its breach than in its
observance, its wanton disregard shown during the period unto the Commonwealth
and the early years of the Philippine Republic when government organized and
supported massive resettlement of the people to the land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess
their ancestral land. The bill was prepared also under the principle of parens
patriae inherent in the supreme power of the State and deeply embedded in
Philippine legal tradition. This principle mandates that persons suffering from serious
disadvantage or handicap, which places them in a position of actual inequality in their
relation or transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators
voting in favor and none against, with no abstention. 112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on
Cultural Communities. It was originally authored and subsequently presented and
defended on the floor by Rep. Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar
implications that would promote, recognize the rights of indigenous cultural
communities within the framework of national unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure
and ascertain that these rights shall be well-preserved and the cultural traditions as
well as the indigenous laws that remained long before this Republic was established
shall be preserved and promoted. There is a need, Mr. Speaker, to look into these
matters seriously and early approval of the substitute bill shall bring into reality the
aspirations, the hope and the dreams of more than 12 million Filipinos that they be
considered in the mainstream of the Philippine society as we fashion for the year
2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as
mandated in the Constitution. He also emphasized that the rights of IPs to their land
was enunciated in Cariño v. Insular Government which recognized the fact that they
had vested rights prior to the establishment of the Spanish and American regimes.115
After exhaustive interpellation, House Bill No. 9125, and its corresponding
amendments, was approved on Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE
CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of
Indigenous Peoples and Do Not Constitute Part of the Land of the Public
Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral
domains and ancestral lands.Ancestral lands are not the same as ancestral
domains. These are defined in Section 3 [a] and [b] of the Indigenous Peoples Right
Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas
generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and
natural resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs by themselves or through their ancestors, communally or individually since
time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social
and cultural welfare. It shall include ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral
and other natural resources, and lands which may no longer be exclusively occupied
by ICCs/IPs but from which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied,
possessed and utilized by individuals, families and clans who are members of the
ICCs/IPs since time immemorial, by themselves or through their predecessors-in-
interest, under claims of individual or traditional group ownership, continuously, to the
present except when interrupted by war, force majeure or displacement by force,
deceit, stealth, or as a consequence of government projects and other voluntary
dealings entered into by government and private individuals/corporations, including,
but not limited to, residential lots, rice terraces or paddies, private forests, swidden
farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of
ownership, occupied or possessed by ICCs/IPs by themselves or through their
ancestors, communally or individually since time immemorial, continuously until the
present, except when interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any other voluntary
dealings with government and/or private individuals or corporations. Ancestral
domains comprise lands, inland waters, coastal areas, and natural resources
therein and includes ancestral lands, forests, pasture, residential, agricultural,
and other lands individually owned whether alienable or not, hunting grounds,
burial grounds, worship areas, bodies of water, mineral and other natural
resources. They also include lands which may no longer be exclusively occupied by
ICCs/IPs but from which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators.116
Ancestral lands are lands held by the ICCs/IPs under the same conditions as
ancestral domains except that these are limited to lands and that these lands are not
merely occupied and possessed but are also utilized by the ICCs/IPs under claims of
individual or traditional group ownership. These lands include but are not limited to
residential lots, rice terraces or paddies, private forests, swidden farms and tree
lots.117
The procedures for claiming ancestral domains and lands are similar to the
procedures embodied in Department Administrative Order (DAO) No. 2, series of
1993, signed by then Secretary of the Department of Environment and Natural
Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the delineation of ancestral
domains by special task forces and ensured the issuance of Certificates of Ancestral
Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power
conferred by the IPRA on the National Commission on Indigenous Peoples
(NCIP).119 The guiding principle in identification and delineation is self-
delineation.120 This means that the ICCs/IPs have a decisive role in determining the
boundaries of their domains and in all the activities pertinent thereto.121
The procedure for the delineation and recognition of ancestral domains is set forth in
Sections 51 and 52 of the IPRA. The identification, delineation and certification
of ancestral lands is in Section 53 of said law.
Upon due application and compliance with the procedure provided under the law and
upon finding by the NCIP that the application is meritorious, the NCIP shall issue a
Certificate of Ancestral Domain Title (CADT) in the name of the community
concerned.122 The allocation of lands within the ancestral domain to any individual
or indigenous corporate (family or clan) claimants is left to the ICCs/IPs concerned to
decide in accordance with customs and traditions.123 With respect to ancestral lands
outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land Title
(CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the
Register of Deeds in the place where the property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be
acquired in two modes: (1) by native title over both ancestral lands and
domains; or (2) by torrens title under the Public Land Act and the Land
Registration Act with respect to ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as
far back as memory reaches, have been held under a claim of private ownership by
ICCs/IPs, have never been public lands and are thus indisputably presumed to
have been held that way since before the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a
claim of private ownership as far back as memory reaches. These lands are deemed
never to have been public lands and are indisputably presumed to have been held
that way since before the Spanish Conquest. The rights of ICCs/IPs to their
ancestral domains (which also include ancestral lands) by virtue of native title shall
be recognized and respected.127 Formal recognition, when solicited by ICCs/IPs
concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT),
which shall recognize the title of the concerned ICCs/IPs over the territories identified
and delineated.128
Like a torrens title, a CADT is evidence of private ownership of land by native
title. Native title, however, is a right of private ownership peculiarly granted to
ICCs/IPs over their ancestral lands and domains. The IPRA categorically declares
ancestral lands and domains held by native title as never to have been public land.
Domains and lands held under native title are, therefore, indisputably presumed to
have never been public lands and are private.
(a) Cariño v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case of Cariño v.
Insular Government.130 Cariñofirmly established a concept of private land title that
existed irrespective of any royal grant from the State.
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration
court 146 hectares of land in Baguio Municipality, Benguet Province. He claimed that
this land had been possessed and occupied by his ancestors since time immemorial;
that his grandfather built fences around the property for the holding of cattle and that
his father cultivated some parts of the land. Cariño inherited the land in accordance
with Igorot custom. He tried to have the land adjusted under the Spanish land laws,
but no document issued from the Spanish Crown.131 In 1901, Cariño obtained a
possessory title to the land under the Spanish Mortgage Law.132 The North American
colonial government, however, ignored his possessory title and built a public road on
the land prompting him to seek a Torrens title to his property in the land registration
court. While his petition was pending, a U.S. military reservation133 was proclaimed
over his land and, shortly thereafter, a military detachment was detailed on the
property with orders to keep cattle and trespassers, including Cariño, off the land.134
In 1904, the land registration court granted Cariño's application for absolute
ownership to the land. Both the Government of the Philippine Islands and the U.S.
Government appealed to the C.F.I. of Benguet which reversed the land registration
court and dismissed Cariño's application. The Philippine Supreme Court135 affirmed
the C.F.I. by applying the Valenton ruling. Cariño took the case to the U.S. Supreme
Court.136 On one hand, the Philippine government invoked the Regalian doctrine and
contended that Cariño failed to comply with the provisions of the Royal Decree of
June 25, 1880, which required registration of land claims within a limited period of
time. Cariño, on the other, asserted that he was the absolute owner of the land jure
gentium, and that the land never formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme
Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that
all lands were held from the Crown, and perhaps the general attitude of conquering
nations toward people not recognized as entitled to the treatment accorded to those
in the same zone of civilization with themselves. It is true, also, that in legal theory,
sovereignty is absolute, and that, as against foreign nations, the United States may
assert, as Spain asserted, absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that Spain had such power.
When theory is left on one side, sovereignty is a question of strength, and may vary in
degree. How far a new sovereign shall insist upon the theoretical relation of the
subjects to the head in the past, and how far it shall recognize actual facts, are
matters for it to decide."137
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice
was with the new colonizer. Ultimately, the matter had to be decided under U.S. law.
The Cariño decision largely rested on the North American constitutionalist's concept
of "due process" as well as the pronounced policy "to do justice to the natives."138 It
was based on the strong mandate extended to the Islands via the Philippine Bill of
1902 that "No law shall be enacted in said islands which shall deprive any person of
life, liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws." The court declared:
"The acquisition of the Philippines was not like the settlement of the white race in the
United States. Whatever consideration may have been shown to the North American
Indians, the dominant purpose of the whites in America was to occupy land. It is
obvious that, however stated, the reason for our taking over the Philippines was
different. No one, we suppose, would deny that, so far as consistent with paramount
necessities, our first object in the internal administration of the islands is to do justice
to the natives, not to exploit their country for private gain. By the Organic Act of July 1,
1902, chapter 1369, section 12 (32 Statutes at Large, 691), all the property and rights
acquired there by the United States are to be administered 'for the benefit of the
inhabitants thereof.' It is reasonable to suppose that the attitude thus assumed by the
United States with regard to what was unquestionably its own is also its attitude in
deciding what it will claim for its own. The same statute made a bill of rights,
embodying the safeguards of the Constitution, and, like the Constitution, extends
those safeguards to all. It provides that 'no law shall be enacted in said islands which
shall deprive any person of life, liberty, or property without due process of law, or deny
to any person therein the equal protection of the laws.' In the light of the declaration
that we have quoted from section 12, it is hard to believe that the United States was
ready to declare in the next breath that "any person" did not embrace the inhabitants
of Benguet, or that it meant by "property" only that which had become such by
ceremonies of which presumably a large part of the inhabitants never had heard, and
that it proposed to treat as public land what they, by native custom and by long
association,- of the profoundest factors in human thought,- regarded as their own."139
The Court went further:
"Every presumption is and ought to be against the government in a case like the
present. It might, perhaps, be proper and sufficient to say that when, as far back
as testimony or memory goes, the land has been held by individuals under a
claim of private ownership, it will be presumed to have been held in the same
way from before the Spanish conquest, and never to have been public
land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we
ought to give the applicant the benefit of the doubt."140
The court thus laid down the presumption of a certain title held (1) as far back as
testimony or memory went, and (2) under a claim of private ownership. Land held by
this title is presumed to "never have been public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees
upheld in the 1904 decision ofValenton v. Murciano. The U.S. Supreme Court
found no proof that the Spanish decrees did not honor native title. On the contrary,
the decrees discussed in Valenton appeared to recognize that the natives owned
some land, irrespective of any royal grant. The Regalian doctrine declared in the
preamble of the Recopilacion was all "theory and discourse" and it was observed that
titles were admitted to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover
such clear proof that it was bad by that law as to satisfy us that he does not
own the land. To begin with, the older decrees and laws cited by the counsel for
the plaintiff in error seem to indicate pretty clearly that the natives were
recognized as owning some lands, irrespective of any royal grant. In other
words, Spain did not assume to convert all the native inhabitants of the Philippines
into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14 of
the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in
Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and others, when
it seems proper, to call for the exhibition of grants, directs them to confirm those who
hold by good grants or justa prescripcion. It is true that it begins by the
characteristic assertion of feudal overlordship and the origin of all titles in the
King or his predecessors. That was theory and discourse. The fact was that
titles were admitted to exist that owed nothing to the powers of Spain beyond
this recognition in their books." (Emphasis supplied).141
The court further stated that the Spanish "adjustment" proceedings never held sway
over unconquered territories. The wording of the Spanish laws were not framed in a
manner as to convey to the natives that failure to register what to them has always
been their own would mean loss of such land. The registration requirement was "not
to confer title, but simply to establish it;" it was "not calculated to convey to the mind
of an Igorot chief the notion that ancient family possessions were in danger, if he had
read every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton.
It was frank enough, however, to admit the possibility that the applicant might have
been deprived of his land under Spanish law because of the inherent ambiguity of the
decrees and concomitantly, the various interpretations which may be given them. But
precisely because of the ambiguity and of the strong "due process mandate" of
the Constitution, the court validated this kind of title. 142 This title was sufficient,
even without government administrative action, and entitled the holder to a Torrens
certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a
problem not without difficulties for courts of a legal tradition. We have deemed it
proper on that account to notice the possible effect of the change of sovereignty and
the act of Congress establishing the fundamental principles now to be observed.
Upon a consideration of the whole case we are of the opinion that law and justice
require that the applicant should be granted what he seeks, and should not be
deprived of what, by the practice and belief of those among whom he lived, was his
property, through a refined interpretation of an almost forgotten law of Spain."143
Thus, the court ruled in favor of Cariño and ordered the registration of the 148
hectares in Baguio Municipality in his name.144
Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the
title it upheld as "native title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in
his argument, characterized as a savage tribe that never was brought under the
civil or military government of the Spanish Crown. It seems probable, if not
certain, that the Spanish officials would not have granted to anyone in that
province the registration to which formerly the plaintiff was entitled by the
Spanish Laws, and which would have made his title beyond question
good. Whatever may have been the technical position of Spain it does not follow that,
in the view of the United States, he had lost all rights and was a mere trespasser
when the present government seized his land. The argument to that effect seems to
amount to a denial of native titles through an important part of the Island of Luzon, at
least, for the want of ceremonies which the Spaniards would not have permitted and
had not the power to enforce."145
This is the only instance when Justice Holmes used the term "native title" in the entire
length of the Cariño decision. It is observed that the widespread use of the term
"native title" may be traced to Professor Owen James Lynch, Jr., a Visiting Professor
at the University of the Philippines College of Law from the Yale University Law
School. In 1982, Prof. Lynch published an article in the Philippine Law
Journal entitled Native Title, Private Right and Tribal Land Law.146 This article was
made after Professor Lynch visited over thirty tribal communities throughout the
country and studied the origin and development of Philippine land laws.147 He
discussed Cariño extensively and used the term "native title" to refer to Cariño's title
as discussed and upheld by the U.S. Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native
title" as defined by Justice Holmes in Cariño "is conceptually similar to "aboriginal
title" of the American Indians.148 This is not surprising, according to Prof. Lynch,
considering that during the American regime, government policy towards ICCs/IPs
was consistently made in reference to native Americans.149 This was clearly
demonstrated in the case of Rubi v. Provincial Board of Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the
provincial governor to remove the Mangyans from their domains and place them in a
permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan who refused to
comply was to be imprisoned. Rubi and some Mangyans, including one who was
imprisoned for trying to escape from the reservation, filed for habeas corpus claiming
deprivation of liberty under the Board Resolution. This Court denied the petition on
the ground of police power. It upheld government policy promoting the idea that a
permanent settlement was the only successful method for educating the Mangyans,
introducing civilized customs, improving their health and morals, and protecting the
public forests in which they roamed.151 Speaking through Justice Malcolm, the court
said:
"Reference was made in the President's instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippine Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that followed by the United
States Government in its dealings with the Indian tribes. Valuable lessons, it is
insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the Government
of the United States and the Indians may be described as that of guardian and ward.
It is for the Congress to determine when and how the guardianship shall be
terminated. The Indians are always subject to the plenary authority of the United
States.152
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that Indian
reservations do exist in the United States, that Indians have been taken from different
parts of the country and placed on these reservations, without any previous
consultation as to their own wishes, and that, when once so located, they have been
made to remain on the reservation for their own good and for the general good of the
country. If any lesson can be drawn from the Indian policy of the United States, it is
that the determination of this policy is for the legislative and executive branches of the
government and that when once so decided upon, the courts should not interfere to
upset a carefully planned governmental system. Perhaps, just as many forceful
reasons exist for the segregation of the Manguianes in Mindoro as existed for the
segregation of the different Indian tribes in the United States."153
Rubi applied the concept of Indian land grants or reservations in the Philippines. An
Indian reservation is a part of the public domain set apart by proper authority for the
use and occupation of a tribe or tribes of Indians.154 It may be set apart by an act of
Congress, by treaty, or by executive order, but it cannot be established by custom and
prescription.155
Indian title to land, however, is not limited to land grants or reservations. It also
covers the "aboriginal right of possession or occupancy."156 The aboriginal right
of possession depends on the actual occupancy of the lands in question by the tribe
or nation as their ancestral home, in the sense that such lands constitute definable
territory occupied exclusively by the particular tribe or nation.157 It is a right which
exists apart from any treaty, statute, or other governmental action, although in
numerous instances treaties have been negotiated with Indian tribes, recognizing
their aboriginal possession and delimiting their occupancy rights or settling and
adjusting their boundaries.158
American jurisprudence recognizes the Indians' or native Americans' rights to
land they have held and occupied before the "discovery" of the Americas by the
Europeans. The earliest definitive statement by the U.S. Supreme Court on the
nature of aboriginal title was made in 1823 in Johnson & Graham's Lessee v.
M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by
the chiefs of two (2) Indian tribes. The U.S. Supreme Court refused to recognize this
conveyance, the plaintiffs being private persons. The only conveyance that was
recognized was that made by the Indians to the government of the European
discoverer. Speaking for the court, Chief Justice Marshall pointed out that the
potentates of the old world believed that they had made ample compensation to the
inhabitants of the new world by bestowing civilization and Christianity upon them; but
in addition, said the court, they found it necessary, in order to avoid conflicting
settlements and consequent war, to establish the principle that discovery gives title
to the government by whose subjects, or by whose authority, the discovery was
made, against all other European governments, which title might be
consummated by possession.160 The exclusion of all other Europeans gave to the
nation making the discovery the sole right of acquiring the soil from the natives and
establishing settlements upon it. As regards the natives, the court further stated that:
"Those relations which were to exist between the discoverer and the natives were to
be regulated by themselves. The rights thus acquired being exclusive, no other power
could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in
no instance, entirely disregarded; but were necessarily, to a considerable extent,
impaired. They were admitted to be the rightful occupants of the soil, with a
legal as well as just claim to retain possession of it, and to use it according to
their own discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of the soil at their
own will, to whomsoever they pleased, was denied by the fundamental principle that
discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as
occupants, they asserted the ultimate dominion to be in themselves; and
claimed and exercised, as a consequence of this ultimate dominion, a power to
grant the soil, while yet in possession of the natives. These grants have been
understood by all to convey a title to the grantees, subject only to the Indian
right of occupancy."161
Thus, the discoverer of new territory was deemed to have obtained the exclusive
right to acquire Indian land and extinguish Indian titles. Only to the discoverer-
whether to England, France, Spain or Holland- did this right belong and not to any
other nation or private person. The mere acquisition of the right nonetheless did not
extinguish Indian claims to land. Rather, until the discoverer, by purchase or
conquest, exercised its right, the concerned Indians were recognized as the "rightful
occupants of the soil, with a legal as well as just claim to retain possession of it."
Grants made by the discoverer to her subjects of lands occupied by the Indians were
held to convey a title to the grantees, subject only to the Indian right of occupancy.
Once the discoverer purchased the land from the Indians or conquered them, it was
only then that the discoverer gained an absolute title unrestricted by Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not
convey a title paramount to the title of the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of
possession has never been questioned. The claim of government extends to
the complete ultimate title, charged with this right of possession, and to the
exclusive power of acquiring that right."162
It has been said that the history of America, from its discovery to the present day,
proves the universal recognition of this principle.163
The Johnson doctrine was a compromise. It protected Indian rights and their native
lands without having to invalidate conveyances made by the government to many
U.S. citizens.164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the
State of Georgia enacted a law requiring all white persons residing within the
Cherokee nation to obtain a license or permit from the Governor of Georgia; and any
violation of the law was deemed a high misdemeanor. The plaintiffs, who were white
missionaries, did not obtain said license and were thus charged with a violation of the
Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the
treaties established between the United States and the Cherokee nation as well as
the Acts of Congress regulating intercourse with them. It characterized the
relationship between the United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign
potentate for the supply of their essential wants, and for their protection from lawless
and injurious intrusions into their country. That power was naturally termed their
protector. They had been arranged under the protection of Great Britain; but the
extinguishment of the British power in their neighborhood, and the establishment of
that of the United States in its place, led naturally to the declaration, on the part of the
Cherokees, that they were under the protection of the United States, and of no other
power. They assumed the relation with the United States which had before subsisted
with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more
powerful, not that of individuals abandoning their national character, and submitting
as subjects to the laws of a master."166
It was the policy of the U.S. government to treat the Indians as nations with distinct
territorial boundaries and recognize their right of occupancy over all the lands within
their domains. Thus:
"From the commencement of our government Congress has passed acts to regulate
trade and intercourse with the Indians; which treat them as nations, respect their
rights, and manifest a firm purpose to afford that protection which treaties stipulate. All
these acts, and especially that of 1802, which is still in force, manifestly consider the
several Indian nations as distinct political communities, having territorial
boundaries, within which their authority is exclusive, and having a right to all
the lands within those boundaries, which is not only acknowledged, but
guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct, independent
political communities, retaining their original natural rights, as the undisputed
possessors of the soil from time immemorial, with the single exception of that
imposed by irresistible power, which excluded them from intercourse with any other
European potentate than the first discoverer of the coast of the particular region
claimed: and this was a restriction which those European potentates imposed on
themselves, as well as on the Indians. The very term "nation," so generally applied to
them, means "a people distinct from others." x x x.167
The Cherokee nation, then, is a distinct community, occupying its own territory, with
boundaries accurately described, in which the laws of Georgia can have no force, and
which the citizens of Georgia have no right to enter but with the assent of the
Cherokees themselves or in conformity with treaties and with the acts of Congress.
The whole intercourse between the United States and this nation is, by our
Constitution and laws, vested in the government of the United States."168
The discovery of the American continent gave title to the government of the
discoverer as against all other European governments. Designated as the naked
fee,169 this title was to be consummated by possession and was subject to the Indian
title of occupancy. The discoverer acknowledged the Indians' legal and just claim to
retain possession of the land, the Indians being the original inhabitants of the land.
The discoverer nonetheless asserted the exclusive right to acquire the Indians' land-
either by purchase, "defensive" conquest, or cession- and in so doing, extinguish the
Indian title. Only the discoverer could extinguish Indian title because it alone asserted
ultimate dominion in itself. Thus, while the different nations of Europe respected the
rights of the natives as occupants, they all asserted the ultimate dominion and title to
be in themselves.170
As early as the 19th century, it became accepted doctrine that although fee title
to the lands occupied by the Indians when the colonists arrived became vested
in the sovereign- first the discovering European nation and later the original 13
States and the United States- a right of occupancy in the Indian tribes was
nevertheless recognized. The Federal Government continued the policy of
respecting the Indian right of occupancy, sometimes called Indian title, which it
accorded the protection of complete ownership.171 But this aboriginal Indian interest
simply constitutes "permission" from the whites to occupy the land, and means mere
possession not specifically recognized as ownership by Congress.172 It is clear that
this right of occupancy based upon aboriginal possession is not a property right.173 It
is vulnerable to affirmative action by the federal government who, as sovereign,
possessed exclusive power to extinguish the right of occupancy at will.174 Thus,
aboriginal title is not the same as legal title. Aboriginal title rests on actual,
exclusive and continuous use and occupancy for a long time.175 It entails that land
owned by Indian title must be used within the tribe, subject to its laws and customs,
and cannot be sold to another sovereign government nor to any citizen.176 Such title
as Indians have to possess and occupy land is in the tribe, and not in the individual
Indian; the right of individual Indians to share in the tribal property usually depends
upon tribal membership, the property of the tribe generally being held in communal
ownership.177
As a rule, Indian lands are not included in the term "public lands," which is ordinarily
used to designate such lands as are subject to sale or other disposal under general
laws.178 Indian land which has been abandoned is deemed to fall into the public
domain.179 On the other hand, an Indian reservation is a part of the public domain set
apart for the use and occupation of a tribe of Indians.180 Once set apart by proper
authority, the reservation ceases to be public land, and until the Indian title is
extinguished, no one but Congress can initiate any preferential right on, or restrict the
nation's power to dispose of, them.181
The American judiciary struggled for more than 200 years with the ancestral
land claims of indigenous Americans.182 And two things are clear. First, aboriginal
title is recognized. Second, indigenous property systems are also recognized. From a
legal point of view, certain benefits can be drawn from a comparison of Philippine IPs
to native Americans.183 Despite the similarities between native title and aboriginal title,
however, there are at present some misgivings on whether jurisprudence on
American Indians may be cited authoritatively in the Philippines. The U.S. recognizes
the possessory rights of the Indians over their land; title to the land, however, is
deemed to have passed to the U.S. as successor of the discoverer. The aboriginal
title of ownership is not specifically recognized as ownership by action authorized by
Congress.184 The protection of aboriginal title merely guards against encroachment by
persons other than the Federal Government.185 Although there are criticisms against
the refusal to recognize the native Americans' ownership of these lands,186 the power
of the State to extinguish these titles has remained firmly entrenched.187
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the
ancestral domains and ancestral lands.188 The IPRA, however, is still in its infancy and
any similarities between its application in the Philippines vis-à-vis American
Jurisprudence on aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cariño doctrine is unique
In the Philippines, the concept of native title first upheld in Cariño and enshrined in
the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs. Native
title presumes that the land is private and was never public. Cariño is the only case
that specifically and categorically recognizes native title. The long line of cases
citing Cariño did not touch on native title and the private character of ancestral
domains and lands. Cariñowas cited by the succeeding cases to support the
concept of acquisitive prescription under the Public Land Act which is a
different matter altogether. Under the Public Land Act, land sought to be registered
must be public agricultural land. When the conditions specified in Section 48 [b] of
the Public Land Act are complied with, the possessor of the land is deemed to have
acquired, by operation of law, a right to a grant of the land.189 The land ceases to be
part of the public domain,190 ipso jure,191 and is converted to private property by the
mere lapse or completion of the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands192 that the court declared that
the rule that all lands that were not acquired from the government, either by purchase
or grant, belong to the public domain has an exception. This exception would be any
land that should have been in the possession of an occupant and of his
predecessors-in-interest since time immemorial. It is this kind of possession that
would justify the presumption that the land had never been part of the public domain
or that it had been private property even before the Spanish conquest.193 Oh Cho,
however, was decided under the provisions of the Public Land Act and Cariño was
cited to support the applicant's claim of acquisitive prescription under the said Act.
All these years, Cariño had been quoted out of context simply to justify long,
continuous, open and adverse possession in the concept of owner of public
agricultural land. It is this long, continuous, open and adverse possession in the
concept of owner of thirty years both for ordinary citizens194 and members of the
national cultural minorities195 that converts the land from public into private and
entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that
the Land is Private.
The private character of ancestral lands and domains as laid down in the IPRA is
further strengthened by the option given to individual ICCs/IPs over their individually-
owned ancestral lands. For purposes of registration under the Public Land Act
and the Land Registration Act, the IPRA expressly converts ancestral land into
public agricultural land which may be disposed of by the State. The necessary
implication is that ancestral land is private. It, however, has to be first
converted to public agricultural land simply for registration purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as
amended, or the Land Registration Act 496- Individual members of cultural
communities, with respect to their individually-owned ancestral lands who, by
themselves or through their predecessors-in-interest, have been in continuous
possession and occupation of the same in the concept of owner since time
immemorial or for a period of not less than thirty (30) years immediately preceding the
approval of this Act and uncontested by the members of the same ICCs/IPs shall
have the option to secure title to their ancestral lands under the provisions of
Commonwealth Act 141, as amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in
character and actually used for agricultural, residential, pasture, and tree farming
purposes, including those with a slope of eighteen percent (18%) or more, are hereby
classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from
the approval of this Act."196
ICCs/IPs are given the option to secure a torrens certificate of title over their
individually-owned ancestral lands. This option is limited to ancestral lands only, not
domains, and such lands must be individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by
themselves or through their predecessors-in-interest, have been in continuous
possession and occupation of the same in the concept of owner since time
immemorial197 or for a period of not less than 30 years, which claims are uncontested
by the members of the same ICCs/IPs, may be registered under C.A. 141, otherwise
known as the Public Land Act, or Act 496, the Land Registration Act. For purposes of
registration, the individually-owned ancestral lands are classified as alienable and
disposable agricultural lands of the public domain, provided, they are agricultural in
character and are actually used for agricultural, residential, pasture and tree farming
purposes. These lands shall be classified as public agricultural lands regardless of
whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the
requirements of the Public Land Act and the Land Registration Act. C.A. 141, the
Public Land Act, deals specifically with lands of the public domain.198 Its provisions
apply to those lands "declared open to disposition or concession" x x x "which have
not been reserved for public or quasi-public purposes, nor appropriated by the
Government, nor in any manner become private property, nor those on which a
private right authorized and recognized by this Act or any other valid law x x x or
which having been reserved or appropriated, have ceased to be so."199 Act 496, the
Land Registration Act, allows registration only of private lands and public agricultural
lands. Since ancestral domains and lands are private, if the ICC/IP wants to avail
of the benefits of C.A. 141 and Act 496, the IPRA itself converts his ancestral
land, regardless of whether the land has a slope of eighteen per cent (18%) or
over,200 from private to public agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land Registration Act
has nonetheless a limited period. This option must be exercised within twenty (20)
years from October 29, 1997, the date of approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the
public domain. They are private and belong to the ICCs/IPs. Section 3 of Article
XII on National Economy and Patrimony of the 1987 Constitution classifies lands of
the public domain into four categories: (a) agricultural, (b) forest or timber, (c) mineral
lands, and (d) national parks. Section 5 of the same Article XII mentions ancestral
lands and ancestral domains but it does not classify them under any of the said four
categories. To classify them as public lands under any one of the four classes
will render the entire IPRA law a nullity. The spirit of the IPRA lies in the distinct
concept of ancestral domains and ancestral lands. The IPRA addresses the major
problem of the ICCs/IPs which is loss of land. Land and space are of vital concern in
terms of sheer survival of the ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of indigenous
cultural communities to their ancestral lands" and that "Congress provide for
the applicability of customary laws x x x in determining the ownership and
extent of ancestral domain."202 It is the recognition of the ICCs/IPs distinct
rights of ownership over their ancestral domains and lands that breathes life
into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral
domains is a limited form of ownership and does not include the right to
alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the
concept of ownership under the civil law. This ownership is based on adverse
possession for a specified period, and harkens to Section 44 of the Public Land Act
on administrative legalization (free patent) of imperfect or incomplete titles and
Section 48 (b) and (c) of the same Act on the judicial confirmation of imperfect or
incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more
than twenty-four hectares and who since July fourth, 1926 or prior thereto, has
continuously occupied and cultivated, either by himself or through his predecessors-
in-interest, a tract or tracts of agricultural public lands subject to disposition, or who
shall have paid the real estate tax thereon while the same has not been occupied by
any person shall be entitled, under the provisions of this chapter, to have a free patent
issued to him for such tract or tracts of such land not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously occupied
and cultivated, either by himself or through his predecessors-in-interest, a tract
or tracts of land, whether disposable or not since July 4, 1955, shall be entitled
to the right granted in the preceding paragraph of this section: Provided, That
at the time he files his free patent application he is not the owner of any real
property secured or disposable under the provision of the Public Land Law. 203
x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands of the
public domain or claiming to own any such lands or an interest therein, but whose
titles have not been perfected or completed, may apply to the Court of First Instance
of the province where the land is located for confirmation of their claims and the
issuance of a certificate of title therefor, under the Land Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have
been in open, continuous, exclusive, and notorious possession and
occupation of agricultural lands of the public domain, under a bona fide claim
of acquisition or ownership, for at least thirty years immediately preceding
the filing of the application for confirmation of title except when prevented by
war or force majeure. These shall be conclusively presumed to have
performed all the conditions essential to a Government grant and shall be
entitled to a certificate of title under the provisions of this Chapter.
(c) Members of the national cultural minorities who by themselves or
through their predecessors-in-interest have been in open, continuous,
exclusive and notorious possession and occupation of lands of the
public domain suitable to agriculture, whether disposable or not, under
a bona fide claim of ownership for at least 30 years shall be entitled to
the rights granted in sub-section (b) hereof."204
Registration under the foregoing provisions presumes that the land was originally
public agricultural land but because of adverse possession since July 4, 1955 (free
patent) or at least thirty years (judicial confirmation), the land has become private.
Open, adverse, public and continuous possession is sufficient, provided, the
possessor makes proper application therefor. The possession has to be confirmed
judicially or administratively after which a torrens title is issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled
to all the rights of ownership under the civil law. The Civil Code of the Philippines
defines ownership in Articles 427, 428 and 429. This concept is based on Roman Law
which the Spaniards introduced to the Philippines through the Civil Code of 1889.
Ownership, under Roman Law, may be exercised over things or rights. It primarily
includes the right of the owner to enjoy and dispose of the thing owned. And the right
to enjoy and dispose of the thing includes the right to receive from the thing what it
produces,205 the right to consume the thing by its use,206 the right to alienate,
encumber, transform or even destroy the thing owned,207 and the right to exclude from
the possession of the thing owned by any other person to whom the owner has not
transmitted such thing.208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens
title but to a Certificate of Ancestral Domain Title (CADT). The CADT formally
recognizes the indigenous concept of ownership of the ICCs/IPs over their ancestral
domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains
the view that ancestral domains and all resources found therein shall serve as the
material bases of their cultural integrity. The indigenous concept of ownership
generally holds that ancestral domains are the ICCs/IPs private but community
property which belongs to all generations and therefore cannot be sold, disposed or
destroyed. It likewise covers sustainable traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral
domains is held under the indigenous concept of ownership. This concept
maintains the view that ancestral domains are the ICCs/IPs private but
community property. It is private simply because it is not part of the public
domain. But its private character ends there. The ancestral domain is owned in
common by the ICCs/IPs and not by one particular person. The IPRA itself
provides that areas within the ancestral domains, whether delineated or not, are
presumed to be communally held.209 These communal rights, however, are not
exactly the same as co-ownership rights under the Civil Code.210 Co-ownership
gives any co-owner the right to demand partition of the property held in common. The
Civil Code expressly provides that "no co-owner shall be obliged to remain in the co-
ownership." Each co-owner may demand at any time the partition of the thing in
common, insofar as his share is concerned.211 To allow such a right over ancestral
domains may be destructive not only of customary law of the community but of the
very community itself.212
Communal rights over land are not the same as corporate rights over real
property, much less corporate condominium rights. A corporation can exist only
for a maximum of fifty (50) years subject to an extension of another fifty years in any
single instance.213 Every stockholder has the right to disassociate himself from the
corporation.214 Moreover, the corporation itself may be dissolved voluntarily or
involuntarily.215
Communal rights to the land are held not only by the present possessors of the
land but extends to all generations of the ICCs/IPs, past, present and future, to
the domain. This is the reason why the ancestral domain must be kept within the
ICCs/IPs themselves. The domain cannot be transferred, sold or conveyed to other
persons. It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of ownership. The
lands are communal. These lands, however, may be transferred subject to the
following limitations: (a) only to the members of the same ICCs/IPs; (b) in accord with
customary laws and traditions; and (c) subject to the right of redemption of the
ICCs/IPs for a period of 15 years if the land was transferred to a non-member of the
ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or
relations in determining the ownership and extent of ancestral domains,"216 the IPRA,
by legislative fiat, introduces a new concept of ownership. This is a concept
that has long existed under customary law.217
Custom, from which customary law is derived, is also recognized under the
Civil Code as a source of law.218 Some articles of the Civil Code expressly provide
that custom should be applied in cases where no codal provision is applicable.219 In
other words, in the absence of any applicable provision in the Civil Code, custom,
when duly proven, can define rights and liabilities.220
Customary law is a primary, not secondary, source of rights under the IPRA and
uniquely applies to ICCs/IPs. Its recognition does not depend on the absence of a
specific provision in the civil law. The indigenous concept of ownership under
customary law is specifically acknowledged and recognized, and coexists with the
civil law concept and the laws on land titling and land registration.221
To be sure, the indigenous concept of ownership exists even without a paper
title. The CADT is merely a "formal recognition" of native title. This is clear from
Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their
ancestral domains by virtue of Native Title shall be recognized and respected. Formal
recognition, when solicited by ICCs/IPs concerned shall be embodied in a Certificate
of Ancestral Domain Title, which shall recognize the title of the concerned ICCs/IPs
over the territories identified and delineated."
The moral import of ancestral domain, native land or being native is "belongingness"
to the land, being people of the land- by sheer force of having sprung from the land
since time beyond recall, and the faithful nurture of the land by the sweat of one's
brow. This is fidelity of usufructuary relation to the land- the possession of
stewardship through perduring, intimate tillage, and the mutuality of blessings
between man and land; from man, care for land; from the land, sustenance for man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine
Enshrined in Section 2, Article XII of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and
ancestral lands. Section 7 provides for the rights over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of
ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights
include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of
water traditionally and actually occupied by ICCs/IPs, sacred places,
traditional hunting and fishing grounds, and all improvements made by
them at any time within the domains;
b) Right to Develop Lands and Natural Resources.- Subject to Section 56
hereof, the right to develop, control and use lands and territories
traditionally occupied, owned, or used; to manage and conserve
natural resources within the territories and uphold the responsibilities
for future generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the right to
negotiate the terms and conditions for the exploration of natural
resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to
national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may
sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment
upon these rights;"
c) Right to Stay in the Territories.- The right to stay in the territory and not to
be removed therefrom. No ICCs/IPs will be relocated without their free and
prior informed consent, nor through any means other than eminent domain.
x x x;
d) Right in Case of Displacement.- In case displacement occurs as a result
of natural catastrophes, the State shall endeavor to resettle the displaced
ICCs/IPs in suitable areas where they can have temporary life support
systems: x x x;
e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of
migrant settlers and organizations into their domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs
shall have access to integrated systems for the management of their inland
waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim parts of the
ancestral domains which have been reserved for various purposes, except
those reserved and intended for common and public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance
with customary laws of the area where the land is located, and only in
default thereof shall the complaints be submitted to amicable settlement and
to the Courts of Justice whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the
ICCs/IPs to their ancestral lands shall be recognized and protected.
a) Right to transfer land/property.- Such right shall include the right to
transfer land or property rights to/among members of the same ICCs/IPs,
subject to customary laws and traditions of the community concerned.
b) Right to Redemption.- In cases where it is shown that the transfer of
land/property rights by virtue of any agreement or devise, to a non-member
of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs,
or is transferred for an unconscionable consideration or price, the transferor
ICC/IP shall have the right to redeem the same within a period not
exceeding fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their
ancestral domains which covers (a) lands, (b) bodies of water traditionally and
actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional hunting and
fishing grounds, and (e) all improvements made by them at any time within the
domains. The right of ownership includes the following rights: (1) the right to
develop lands and natural resources; (b) the right to stay in the territories; (c) the right
to resettlement in case of displacement; (d) the right to regulate the entry of migrants;
(e) the right to safe and clean air and water; (f) the right to claim parts of the ancestral
domains as reservations; and (g) the right to resolve conflict in accordance with
customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral
domains, Section 8 gives the ICCs/IPs also the right to transfer the land or property
rights to members of the same ICCs/IPs or non-members thereof. This is in keeping
with the option given to ICCs/IPs to secure a torrens title over the ancestral lands, but
not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the
Ancestral Domains Does Not Deprive the State of Ownership Over the Natural
Resources and Control and Supervision in their Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural
resources is declared in Section 2, Article XII of the 1987 Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may
directly undertake such activities, or, it may enter into co-production, joint
venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such
terms and conditions as may be provided by law. In cases of water rights for irrigation,
water supply, fisheries, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the
grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development,
and utilization of minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such agreements, the state
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance
with this provision, within thirty days from its execution."223
All lands of the public domain and all natural resources- waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources- are owned by the
State. The Constitution provides that in the exploration, development and utilization of
these natural resources, the State exercises full control and supervision, and may
undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or production-
sharing agreements with Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens;
4. For the large-scale exploration, development and utilization of minerals,
petroleum and other mineral oils, the President may enter into agreements
with foreign-owned corporations involving technical or financial assistance.
As owner of the natural resources, the State is accorded primary power and
responsibility in the exploration, development and utilization of these natural
resources. The State may directly undertake the exploitation and development by
itself, or, it may allow participation by the private sector through co-production,224joint
venture,225 or production-sharing agreements.226 These agreements may be for a
period of 25 years, renewable for another 25 years. The State, through Congress,
may allow the small-scale utilization of natural resources by Filipino citizens. For the
large-scale exploration of these resources, specifically minerals, petroleum and other
mineral oils, the State, through the President, may enter into technical and financial
assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale
Mining Act of 1991 (R.A. 7076) the three types of agreements, i.e., co-production,
joint venture or production-sharing, may apply to both large-scale227 and small-scale
mining.228 "Small-scale mining" refers to "mining activities which rely heavily on
manual labor using simple implements and methods and do not use explosives or
heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs
ownership over the natural resources within their ancestral domains. The right
of ICCs/IPs in their ancestral domains includes ownership, but this "ownership" is
expressly defined and limited in Section 7 (a) as:
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of
water traditionally and actually occupied by ICCs/IPs, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time within
the domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and
fishing grounds, and all improvements made by them at any time within the domains."
It will be noted that this enumeration does not mention bodies of water not
occupied by the ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional
hunting grounds, fish in the traditional fishing grounds, forests or timber in the sacred
places, etc. and all other natural resources found within the ancestral
domains. Indeed, the right of ownership under Section 7 (a) does not cover
"waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, floraand fauna and all other natural
resources" enumerated in Section 2, Article XII of the 1987 Constitution as
belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section
7(a) complies with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the
Parameters of Sec. 7 (a) of the IPRA And is Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands,
waters, and natural resources and all improvements made by them at any time within
the ancestral domains/ lands. These rights shall include, but not limited to, the right
over the fruits, the right to possess, the right to use, right to consume, right to exclude
and right to recover ownership, and the rights or interests over land and natural
resources. The right to recover shall be particularly applied to lands lost through fraud
or any form or vitiated consent or transferred for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over
"lands, waters and natural resources." The term "natural resources" is not one of
those expressly mentioned in Section 7 (a) of the law. Our Constitution and
jurisprudence clearly declare that the right to claim ownership over land does not
necessarily include the right to claim ownership over the natural resources found on
or under the land.231 The IPRA itself makes a distinction between land and natural
resources. Section 7 (a) speaks of the right of ownership only over the land
within the ancestral domain. It is Sections 7 (b) and 57 of the law that speak of
natural resources, and these provisions, as shall be discussed later, do not
give the ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not
specifically and categorically challenged by petitioners. Petitioners actually assail the
constitutionality of the Implementing Rules in general.232Nevertheless, to avoid any
confusion in the implementation of the law, it is necessary to declare that the inclusion
of "natural resources" in Section 1, Part II, Rule III of the Implementing Rules goes
beyond the parameters of Section 7 (b) of the law and is contrary to Section 2,
Article XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is
Allowed Under Paragraph 3, Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b)
merely grants the ICCs/IPs the right to manage them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56
hereof, right to develop, control and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural resourceswithin the territories and
uphold the responsibilities for future generations; to benefit and share the profits from
allocation and utilization of the natural resources found therein; the right to
negotiate the terms and conditions for the exploration of natural resources in the
areas for the purpose of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws; the right to an
informed and intelligent participation in the formulation and implementation of any
project, government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may sustain as
a result of the project; and the right to effective measures by the government to
prevent any interference with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA
enumerates the following rights:
a) the right to develop, control and use lands and territories traditionally
occupied;
b) the right to manage and conserve natural resources within the territories
and uphold the responsibilities for future generations;
c) the right to benefit and share the profits from the allocation and utilization
of the natural resources found therein;
d) the right to negotiate the terms and conditions for the exploration
of natural resources for the purpose of ensuring ecological, environmental
protection and the conservation measures, pursuant to national and
customary laws;
e) the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or
impact upon the ancestral domains and to receive just and fair
compensation for any damages which they may sustain as a result of the
project;
f) the right to effective measures by the government to prevent any
interference with, alienation and encroachment upon these rights.233
Ownership over the natural resources in the ancestral domains remains with
the State and the ICCs/IPs are merely granted the right to "manage and
conserve" them for future generations, "benefit and share" the profits from
their allocation and utilization, and "negotiate the terms and conditions for their
exploration" for the purpose of "ensuring ecological and environmental
protection and conservation measures." It must be noted that the right to negotiate
the terms and conditions over the natural resources covers only their exploration
which must be for the purpose of ensuring ecological and environmental protection of,
and conservation measures in the ancestral domain. It does not extend to the
exploitation and development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of
management or stewardship. For the ICCs/IPs may use these resources and share
in the profits of their utilization or negotiate the terms for their exploration. At the same
time, however, the ICCs/IPs must ensure that the natural resources within their
ancestral domains are conserved for future generations and that the "utilization" of
these resources must not harm the ecology and environment pursuant to national and
customary laws.234
The limited rights of "management and use" in Section 7 (b) must be taken to
contemplate small-scale utilization of natural resources as distinguished from
large-scale. Small-scale utilization of natural resources is expressly allowed in
the third paragraph of Section 2, Article XII of the Constitution "in recognition of
the plight of forest dwellers, gold panners, marginal fishermen and others similarly
situated who exploit our natural resources for their daily sustenance and
survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage and
conserve these resources and ensure environmental and ecological protection within
the domains, which duties, by their very nature, necessarily reject utilization in a
large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is
Allowed Under Paragraphs 1 and 4, Section 2, Article XII of the 1987
Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall
have priority rights in the harvesting, extraction, development or exploitation of
any natural resources within the ancestral domains. A non-member of the ICCs/IPs
concerned may be allowed to take part in the development and utilization of the
natural resources for a period of not exceeding twenty-five (25) years renewable for
not more than twenty-five (25) years: Provided, That a formal and written agreement
is entered into with the ICCs/IPs concerned or that the community, pursuant to its own
decision-making process, has agreed to allow such operation: Provided finally, That
the NCIP may exercise visitorial powers and take appropriate action to safeguard the
rights of the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of
natural resources within ancestral domains" and "gives the ICCs/IPs 'priority rights'
therein." The terms "harvesting, extraction, development or exploitation" of any
natural resources within the ancestral domains obviously refer to large-scale
utilization. It is utilization not merely for subsistence but for commercial or other
extensive use that require technology other than manual labor.236 The law recognizes
the probability of requiring a non-member of the ICCs/IPs to participate in the
development and utilization of the natural resources and thereby allows such
participation for a period of not more than 25 years, renewable for another 25 years.
This may be done on condition that a formal written agreement be entered into by the
non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and
conserve" the natural resources. Instead, the law only grants the ICCs/IPs "priority
rights" in the development or exploitation thereof. Priority means giving preference.
Having priority rights over the natural resources does not necessarily mean
ownership rights. The grant of priority rights implies that there is a superior entity that
owns these resources and this entity has the power to grant preferential rights over
the resources to whosoever itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of
the said doctrine that all natural resources found within the ancestral domains belong
to the State. It incorporates by implication the Regalian doctrine, hence, requires that
the provision be read in the light of Section 2, Article XII of the 1987
Constitution. Interpreting Section 2, Article XII of the 1987 Constitution237 in
relation to Section 57 of IPRA, the State, as owner of these natural resources,
may directly undertake the development and exploitation of the natural
resources by itself, or in the alternative, it may recognize the priority rights of
the ICCs/IPs as owners of the land on which the natural resources are found by
entering into a co-production, joint venture, or production-sharing agreement
with them. The State may likewise enter into any of said agreements with a non-
member of the ICCs/IPs, whether natural or juridical, or enter into agreements
with foreign-owned corporations involving either technical or financial
assistance for the large-scale exploration, development and utilization of
minerals, petroleum, and other mineral oils, or allow such non-member to
participate in its agreement with the ICCs/IPs. If the State decides to enter into an
agreement with a non-ICC/IP member, the National Commission on Indigenous
Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the agreement shall
be protected. The agreement shall be for a period of 25 years, renewable for another
25 years.
To reiterate, in the large-scale utilization of natural resources within the ancestral
domains, the State, as owner of these resources, has four (4) options: (1) it may, of
and by itself, directly undertake the development and exploitation of the natural
resources; or (2) it may recognize the priority rights of the ICCs/IPs by entering into
an agreement with them for such development and exploitation; or (3) it may enter
into an agreement with a non-member of the ICCs/IPs, whether natural or juridical,
local or foreign; or (4) it may allow such non-member to participate in the agreement
with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in
their ancestral domains merely gives the ICCs/IPs, as owners and occupants of
the land on which the resources are found, the right to the small-scale
utilization of these resources, and at the same time, a priority in their large-
scale development and exploitation. Section 57 does not mandate the State to
automatically give priority to the ICCs/IPs. The State has several options and it
is within its discretion to choose which option to pursue. Moreover, there is
nothing in the law that gives the ICCs/IPs the right to solely undertake the large-scale
development of the natural resources within their domains. The ICCs/IPs must
undertake such endeavour always under State supervision or control. This indicates
that the State does not lose control and ownership over the resources even in their
exploitation. Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs
who, as actual occupants of the land where the natural resources lie, have
traditionally utilized these resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural resources by the
following provision:
"Section 59. Certification Precondition.- All departments and other governmental
agencies shall henceforth be strictly enjoined from issuing, renewing or granting any
concession, license or lease, or entering into any production-sharing agreement.
without prior certification from the NCIP that the area affected does not overlap with
any ancestral domain. Such certification shall only be issued after a field-based
investigation is conducted by the Ancestral Domains Office of the area
concerned: Provided, That no certification shall be issued by the NCIP without the
free and prior informed and written consent of the ICCs/IPs concerned: Provided,
further, That no department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally, That the
ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any
project that has not satisfied the requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of
natural resources shall not be issued, renewed or granted by all departments and
government agencies without prior certification from the NCIP that the area subject of
the agreement does not overlap with any ancestral domain. The NCIP certification
shall be issued only after a field-based investigation shall have been conducted and
the free and prior informed written consent of the ICCs/IPs obtained. Non-compliance
with the consultation requirement gives the ICCs/IPs the right to stop or suspend any
project granted by any department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of
any concession, license or agreement over natural resources, that a certification be
issued by the NCIP that the area subject of the agreement does not lie within any
ancestral domain. The provision does not vest the NCIP with power over the other
agencies of the State as to determine whether to grant or deny any concession or
license or agreement. It merely gives the NCIP the authority to ensure that the
ICCs/IPs have been informed of the agreement and that their consent thereto has
been obtained. Note that the certification applies to agreements over natural
resources that do not necessarily lie within the ancestral domains. For those that are
found within the said domains, Sections 7(b) and 57 of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE
INDIGENOUS INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism
stretching back to prehistoric times. The movement received a massive impetus
during the 1960's from two sources. First, the decolonization of Asia and Africa
brought into the limelight the possibility of peoples controlling their own destinies.
Second, the right of self-determination was enshrined in the UN Declaration on
Human Rights.238 The rise of the civil rights movement and anti-racism brought to the
attention of North American Indians, Aborigines in Australia, and Maori in New
Zealand the possibility of fighting for fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were founded,239 and during
the 1980's, indigenous affairs were on the international agenda. The people of the
Philippine Cordillera were the first Asians to take part in the international indigenous
movement. It was the Cordillera People's Alliance that carried out successful
campaigns against the building of the Chico River Dam in 1981-82 and they have
since become one of the best-organized indigenous bodies in the world.240
Presently, there is a growing concern for indigenous rights in the international scene.
This came as a result of the increased publicity focused on the continuing disrespect
for indigenous human rights and the destruction of the indigenous peoples'
environment, together with the national governments' inability to deal with the
situation.241Indigenous rights came as a result of both human rights and
environmental protection, and have become a part of today's priorities for the
international agenda.242
International institutions and bodies have realized the necessity of applying policies,
programs and specific rules concerning IPs in some nations. The World Bank, for
example, first adopted a policy on IPs as a result of the dismal experience of projects
in Latin America.243 The World Bank now seeks to apply its current policy on IPs to
some of its projects in Asia. This policy has provided an influential model for the
projects of the Asian Development Bank.244
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and
declares as a State policy the promotion of their rights within the framework of
national unity and development.245 The IPRA amalgamates the Philippine category of
ICCs with the international category of IPs,246 and is heavily influenced by both the
International Labor Organization (ILO) Convention 169 and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples.247
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal
Peoples in Independent Countries"248 and was adopted on June 27, 1989. It is based
on the Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Covenant on Civil and Political
Rights, and many other international instruments on the prevention of
discrimination.249 ILO Convention No. 169 revised the "Convention Concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations
in Independent Countries" (ILO No. 107) passed on June 26, 1957. Developments in
international law made it appropriate to adopt new international standards on
indigenous peoples "with a view to removing the assimilationist orientation of the
earlier standards," and recognizing the aspirations of these peoples to exercise
control over their own institutions, ways of life and economic development."250
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic
and religious differences. These differences were carried over and magnified by the
Philippine government through the imposition of a national legal order that is mostly
foreign in origin or derivation.251 Largely unpopulist, the present legal system has
resulted in the alienation of a large sector of society, specifically, the indigenous
peoples. The histories and cultures of the indigenes are relevant to the evolution of
Philippine culture and are vital to the understanding of contemporary problems.252 It is
through the IPRA that an attempt was made by our legislators to understand Filipino
society not in terms of myths and biases but through common experiences in the
course of history. The Philippines became a democracy a centennial ago and the
decolonization process still continues. If the evolution of the Filipino people into a
democratic society is to truly proceed democratically, i.e., if the Filipinos as a whole
are to participate fully in the task of continuing democratization,253 it is this Court's
duty to acknowledge the presence of indigenous and customary laws in the country
and affirm their co-existence with the land laws in our national legal system.

With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous
Peoples Rights Act of 1997.
U.S. Supreme Court
Cariño v. Insular Government, 212 U.S. 449 (1909)
Cariño v. Insular Government of the Philippine Islands
No. 72
Argued January 13, 1909
Decided February 23, 1909
212 U.S. 449
ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS
Syllabus
Writ of error is the general, and appeal the exceptional, method of
bringing Cases to this Court. The latter method is in the main
confined to equity cases, and the former is proper to bring up a
judgment of the Supreme Court of the Philippine Islands affirming a
judgment of the Court of Land Registration dismissing an application
for registration of land.
Although a province may be excepted from the operation of Act No.
926 of 1903 of the Philippine Commission which provides for the
registration and perfecting of new titles, one who actually owns
property in such province is entitled to registration under Act No. 496
of 1902, which applies to the whole archipelago.
While, in legal theory and as against foreign nations, sovereignty is
absolute, practically it is a question of strength and of varying
degree, and it is for a new sovereign to decide how far it will insist
upon theoretical relations of the subject to the former sovereign and
how far it will recognize actual facts.
Page 212 U. S. 450
The acquisition of the Philippines was not for the purpose of
acquiring the lands occupied by the inhabitants, and under the
Organic Act of July 1, 1902, c. 1369, 32 Stat. 691, providing that
property rights are to be administered for the benefit of the
inhabitants, one who actually owned land for many years cannot be
deprived of it for failure to comply with certain ceremonies
prescribed either by the acts of the Philippine Commission or by
Spanish law.
The Organic Act of the Philippines made a bill of rights embodying
safeguards of the Constitution, and, like the Constitution, extends
those safeguards to all.
Every presumption of ownership is in favor of one actually occupying
land for many years, and against the government which seeks to
deprive him of it, for failure to comply with provisions of a
subsequently enacted registration act.
Title by prescription against the crown existed under Spanish law in
force in the Philippine Islands prior to their acquisition by the United
States, and one occupying land in the Province of Benguet for more
than fifty years before the Treaty of Paris is entitled to the continued
possession thereof.
7 Phil. 132 reversed.
The facts are stated in the opinion.
Page 212 U. S. 455
MR. JUSTICE HOLMES delivered the opinion of the Court.
This was an application to the Philippine Court of Land Registration
for the registration of certain land. The application was granted by
the court on March 4, 1904. An appeal was taken to the Court of First
Instance of the Province of Benguet on behalf of the government of
the Philippines, and also on behalf of the United States, those
governments having taken possession of the property for public and
military purposes. The Court of First Instance found the facts and
dismissed the application upon grounds of law. This judgment was
affirmed by the supreme court, 7 Phil. 132, and the case then was
brought here by writ of error.
The material facts found are very few. The applicant and plaintiff in
error is an Igorot of the Province of Benguet, where the land lies. For
more than fifty years before the Treaty of
Page 212 U. S. 456
Paris, April 11, 1899, as far back as the findings go, the plaintiff and
his ancestors had held the land as owners. His grandfather had lived
upon it, and had maintained fences sufficient for the holding of
cattle, according to the custom of the country, some of the fences, it
seems, having been of much earlier date. His father had cultivated
parts and had used parts for pasturing cattle, and he had used it for
pasture in his turn. They all had been recognized as owners by the
Igorots, and he had inherited or received the land from his father in
accordance with Igorot custom. No document of title, however, had
issued from the Spanish Crown, and although, in 1893-1894 and again
in 1896-1897, he made application for one under the royal decrees
then in force, nothing seems to have come of it, unless, perhaps,
information that lands in Benguet could not be conceded until those
to be occupied for a sanatorium, etc., had been designated -- a
purpose that has been carried out by the Philippine government and
the United States. In 1901, the plaintiff filed a petition, alleging
ownership, under the mortgage law, and the lands were registered to
him, that process, however, establishing only a possessory title, it is
said.
Before we deal with the merits, we must dispose of a technical point.
The government has spent some energy in maintaining that this case
should have been brought up by appeal, and not by writ of error. We
are of opinion, however, that the mode adopted was right. The
proceeding for registration is likened to bills in equity to quiet title,
but it is different in principle. It is a proceeding in rem under a
statute of the type of the Torrens Act, such as was discussed in Tyler
v. Court of Registration, 175 Mass. 71. It is nearer to law than to
equity, and is an assertion of legal title; but we think it unnecessary
to put it into either pigeon hole. A writ of error is the general method
of bringing cases to this Court, an appeal the exception, confined to
equity in the main. There is no reason for not applying the general
rule to this case. Ormsby v. Webb, 134 U. S. 47, 134 U. S.
65; Campbell v. Porter, 162 U. S. 478; Metropolitan R. Co. v. District of
Columbia, 195 U. S. 322.
Page 212 U. S. 457
Another preliminary matter may as well be disposed of here. It is
suggested that, even if the applicant have title, he cannot have it
registered, because the Philippine Commission's Act No. 926, of
1903, excepts the Province of Benguet among others from its
operation. But that act deals with the acquisition of new titles by
homestead entries, purchase, etc., and the perfecting of titles begun
under the Spanish law. The applicant's claim is that he now owns the
land, and is entitled to registration under the Philippine
Commission's Act No. 496, of 1902, which established a court for that
purpose with jurisdiction "throughout the Philippine Archipelago," §
2, and authorized in general terms applications to be made by
persons claiming to own the legal estate in fee simple, as the
applicant does. He is entitled to registration if his claim of ownership
can be maintained.
We come, then, to the question on which the case was decided below
-- namely, whether the plaintiff owns the land. The position of the
government, shortly stated, is that Spain assumed, asserted, and had
title to all the land in the Philippines except so far as it saw fit to
permit private titles to be acquired; that there was no prescription
against the Crown, and that, if there was, a decree of June 25, 1880,
required registration within a limited time to make the title good;
that the plaintiff's land was not registered, and therefore became, if
it was not always, public land; that the United States succeeded to
the title of Spain, and so that the plaintiff has no rights that the
Philippine government is bound to respect.
If we suppose for the moment that the government's contention is so
far correct that the Crown of Spain in form asserted a title to this
land at the date of the Treaty of Paris, to which the United States
succeeded, it is not to be assumed without argument that the
plaintiff's case is at an end. It is true that Spain, in its earlier
decrees, embodied the universal feudal theory that all lands were
held from the Crown, and perhaps the general attitude of conquering
nations toward people not recognized as entitled to the treatment
accorded to those
Page 212 U. S. 458
in the same zone of civilization with themselves. It is true also that,
in legal theory, sovereignty is absolute, and that, as against foreign
nations, the United States may assert, as Spain asserted, absolute
power. But it does not follow that, as against the inhabitants of the
Philippines, the United States asserts that Spain had such power.
When theory is left on one side, sovereignty is a question of strength,
and may vary in degree. How far a new sovereign shall insist upon
the theoretical relation of the subjects to the head in the past, and
how far it shall recognize actual facts, are matters for it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor
General, in his argument, characterized as a savage tribe that never
was brought under the civil or military government of the Spanish
Crown. It seems probable, if not certain, that the Spanish officials
would not have granted to anyone in that province the registration to
which formerly the plaintiff was entitled by the Spanish laws, and
which would have made his title beyond question good. Whatever
may have been the technical position of Spain, it does not follow
that, in the view of the United States, he had lost all rights and was a
mere trespasser when the present government seized his land. The
argument to that effect seems to amount to a denial of native titles
throughout an important part of the island of Luzon, at least, for the
want of ceremonies which the Spaniards would not have permitted
and had not the power to enforce.
The acquisition of the Philippines was not like the settlement of the
white race in the United States. Whatever consideration may have
been shown to the North American Indians, the dominant purpose of
the whites in America was to occupy the land. It is obvious that,
however stated, the reason for our taking over the Philippines was
different. No one, we suppose, would deny that, so far as consistent
with paramount necessities, our first object in the internal
administration of the islands is to do justice to the natives, not to
exploit their country for private gain. By the Organic Act of July 1,
1902, c. 1369, § 12, 32 Stat. 691, all the property and rights acquired
there by the
Page 212 U. S. 459
United States are to be administered "for the benefit of the
inhabitants thereof." It is reasonable to suppose that the attitude
thus assumed by the United States with regard to what was
unquestionably its own is also its attitude in deciding what it will
claim for its own. The same statute made a bill of rights, embodying
the safeguards of the Constitution, and, like the Constitution,
extends those safeguards to all. It provides that
"no law shall be enacted in said islands which shall deprive any
person of life, liberty, or property without due process of law, or deny
to any person therein the equal protection of the laws."
§ 5. In the light of the declaration that we have quoted from § 12, it is
hard to believe that the United States was ready to declare in the
next breath that "any person" did not embrace the inhabitants of
Benguet, or that it meant by "property" only that which had become
such by ceremonies of which presumably a large part of the
inhabitants never had heard, and that it proposed to treat as public
land what they, by native custom and by long association -- one of
the profoundest factors in human thought -- regarded as their own.
It is true that, by § 14, the government of the Philippines is
empowered to enact rules and prescribe terms for perfecting titles
to public lands where some, but not all, Spanish conditions had been
fulfilled, and to issue patents to natives for not more than sixteen
hectares of public lands actually occupied by the native or his
ancestors before August 13, 1898. But this section perhaps might be
satisfied if confined to cases where the occupation was of land
admitted to be public land, and had not continued for such a length
of time and under such circumstances as to give rise to the
understanding that the occupants were owners at that date. We
hesitate to suppose that it was intended to declare every native who
had not a paper title a trespasser, and to set the claims of all the
wilder tribes afloat. It is true again that there is excepted from the
provision that we have quoted as to the administration of the
property and rights acquired by the United States such land and
property as shall be designated by the President for military or other
reservations,
Page 212 U. S. 460
as this land since has been. But there still remains the question what
property and rights the United States asserted itself to have
acquired.
Whatever the law upon these points may be, and we mean to go no
further than the necessities of decision demand, every presumption
is and ought to be against the government in a case like the present.
It might, perhaps, be proper and sufficient to say that when, as far
back as testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be presumed to
have been held in the same way from before the Spanish conquest,
and never to have been public land. Certainly, in a case like this, if
there is doubt or ambiguity in the Spanish law, we ought to give the
applicant the benefit of the doubt. Whether justice to the natives and
the import of the organic act ought not to carry us beyond a subtle
examination of ancient texts, or perhaps even beyond the attitude of
Spanish law, humane though it was, it is unnecessary to decide. If, in
a tacit way, it was assumed that the wild tribes of the Philippines
were to be dealt with as the power and inclination of the conqueror
might dictate, Congress has not yet sanctioned the same course as
the proper one "for the benefit of the inhabitants thereof."
If the applicant's case is to be tried by the law of Spain, we do not
discover such clear proof that it was bad by that law as to satisfy us
that he does not own the land. To begin with, the older decrees and
laws cited by the counsel for the plaintiff in error seem to indicate
pretty clearly that the natives were recognized as owning some
lands, irrespective of any royal grant. In other words, Spain did not
assume to convert all the native inhabitants of the Philippines into
trespassers, or even into tenants at will. For instance, Book 4, Title
12, Law 14 of the Recopilacion de Leyes de las Indias, cited for a
contrary conclusion in Valenton v. Murciano,3 Phil. 537, while it
commands viceroys and others, when it seems proper, to call for the
exhibition of grants, directs them to confirm those who hold by good
grants or justa prescripcion. It is true that it
Page 212 U. S. 461
begins by the characteristic assertion of feudal overlordship and the
origin of all titles in the King or his predecessors. That was theory
and discourse. The fact was that titles were admitted to exist that
owed nothing to the powers of Spain beyond this recognition in their
books.
Prescription is mentioned again in the royal cedula of October 15,
1754, cited in 3 Phil. 546:
"Where such possessors shall not be able to produce title deeds, it
shall be sufficient if they shall show that ancient possession, as a
valid title by prescription."
It may be that this means possession from before 1700; but, at all
events, the principle is admitted. As prescription, even against
Crown lands, was recognized by the laws of Spain, we see no
sufficient reason for hesitating to admit that it was recognized in the
Philippines in regard to lands over which Spain had only a paper
sovereignty.
The question comes, however, on the decree of June 25, 1880, for the
adjustment of royal lands wrongfully occupied by private individuals
in the Philippine Islands. This begins with the usual theoretic
assertion that, for private ownership, there must have been a grant
by competent authority; but instantly descends to fact by providing
that, for all legal effects, those who have been in possession for
certain times shall be deemed owners. For cultivated land, twenty
years, uninterrupted, is enough. For uncultivated, thirty. Art. 5. So
that, when this decree went into effect, the applicant's father was
owner of the land by the very terms of the decree. But, it is said, the
object of this law was to require the adjustment or registration
proceedings that it described, and in that way to require everyone to
get a document of title or lose his land. That purpose may have been
entertained, but it does not appear clearly to have been applicable to
all. The regulations purport to have been made "for the adjustment of
royal lands wrongfully occupied by private individuals." (We follow
the translation in the government's brief.) It does not appear that this
land ever was royal land or wrongfully occupied. In Article 6, it is
provided that
"interested parties not included within the two preceding
Page 212 U. S. 462
articles [the articles recognizing prescription of twenty and thirty
years] may legalize their possession, and thereby acquire the full
ownership of the said lands, by means of adjustment proceedings, to
be conducted in the following manner."
This seems, by its very terms, not to apply to those declared already
to be owners by lapse of time. Article 8 provides for the case of
parties not asking an adjustment of the lands of which they are
unlawfully enjoying the possession, within one year, and threatens
that the treasury "will reassert the ownership of the state over the
lands," and will sell at auction such part as it does not reserve. The
applicant's possession was not unlawful, and no attempt at any such
proceedings against him or his father ever was made. Finally, it
should be noted that the natural construction of the decree is
confirmed by the report of the council of state. That report puts
forward as a reason for the regulations that, in view of the condition
of almost all property in the Philippines, it is important to fix its
status by general rules on the principle that the lapse of a fixed Judgment reversed.
period legalizes completely all possession, recommends in two
articles twenty and thirty years, as adopted in the decree, and then
suggests that interested parties not included in those articles may
legalize their possession and acquire ownership by adjustment at a
certain price.

It is true that the language of Articles 4 and 5 attributes title to

those "who may prove" possession for the necessary time, and we do
not overlook the argument that this means may prove in registration
proceedings. It may be that an English conveyancer would have
recommended an application under the foregoing decree, but
certainly it was not calculated to convey to the mind of an Igorot
chief the notion that ancient family possessions were in danger, if he
had read every word of it. The words "may prove" (acrediten), as well,
or better, in view of the other provisions, might be taken to mean
when called upon to do so in any litigation. There are indications that
registration was expected from all, but none sufficient to show that,
for want of it, ownership actually gained would be lost.

Page 212 U. S. 463

The effect of the proof, wherever made, was not to confer title, but
simply to establish it, as already conferred by the decree, if not by
earlier law. The royal decree of February 13, 1894, declaring forfeited
titles that were capable of adjustment under the decree of 1880, for
which adjustment had not been sought, should not be construed as a
confiscation, but as the withdrawal of a privilege. As a matter of fact,
the applicant never was disturbed. This same decree is quoted by
the Court of Land Registration for another recognition of the common
law prescription of thirty years as still running against alienable
Crown land.

It will be perceived that the rights of the applicant under the Spanish
law present a problem not without difficulties for courts of a
different legal tradition. We have deemed it proper on that account to
notice the possible effect of the change of sovereignty and the act of
Congress establishing the fundamental principles now to be
observed. Upon a consideration of the whole case, we are of opinion
that law and justice require that the applicant should be granted
what he seeks, and should not be deprived of what, by the practice
and belief of those among whom he lived, was his property, through a
refined interpretation of an almost forgotten law of Spain.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters of public concern is
invoked in this special civil action for mandamus instituted by petitioner Valentin L.
Legaspi against the Civil Service Commission. The respondent had earlier denied
Legaspi's request for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
themselves as civil service eligibles who passed the civil service examinations for
sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and
Mariano Agas, is guaranteed by the Constitution, and that he has no other plain,
speedy and adequate remedy to acquire the information, petitioner prays for the
issuance of the extraordinary writ of mandamus to compel the respondent
Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to enforce the
fundamental right to information. The same remedy was resorted to in the case
of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27)
wherein the people's right to be informed under the 1973 Constitution (Article IV,
Section 6) was invoked in order to compel the publication in the Official Gazette of
various presidential decrees, letters of instructions and other presidential issuances.
Prior to the recognition of the right in said Constitution the statutory right to
information provided for in the Land Registration Act (Section 56, Act 496, as
amended) was claimed by a newspaper editor in another mandamus proceeding, this
time to demand access to the records of the Register of Deeds for the purpose of
gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80
Phil. 383 [1948]).
The constitutional right to information on matters of public concern first gained
recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:
Sec. 6. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations as
may be provided by law.
The foregoing provision has been retained and the right therein provided amplified in
Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as
to government research data used as basis for policy development." The new
provision reads:
The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis. for policy
development, shall be afforded the citizen, subject to such stations
as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by means of
which the right to information may be enjoyed (Cooley, A Treatise on the
Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the
duty to afford access to sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the constitution
without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be
provided for by the Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with the declared State
policy of full public disclosure of all transactions involving public interest (Constitution,
Art. 11, Sec. 28). However, it cannot be overemphasized that whatever limitation may
be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have
become operative and enforceable by virtue of the adoption of the New Charter.
Therefore, the right may be properly invoked in a mandamus proceeding such as this
one.
The Solicitor General interposes procedural objections to Our giving due course to
this Petition. He challenges the petitioner's standing to sue upon the ground that the
latter does not possess any clear legal right to be informed of the civil service
eligibilities of the government employees concerned. He calls attention to the alleged
failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the
Commission to furnish the petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or person
which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-
Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in
every case must therefore be an "aggrieved party" in the sense that he possesses a
clear legal right to be enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the petitioner
to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of
Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and
Mariano Agas, At most there is a vague reference to an unnamed client in whose
behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo,
p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly
anchored his case upon the right of the people to information on matters of public
concern, which, by its very nature, is a public right. It has been held that:
* * * when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at
whose instigation the proceedings are instituted need not show that
he has any legal or special interest in the result, it being sufficient to
show that he is a citizen and as such interested in the execution of
the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915,
April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding involves
the assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen, and therefore, part of the general "public"
which possesses the right.
The Court had opportunity to define the word "public" in the Subido case, supra, when
it held that even those who have no direct or tangible interest in any real estate
transaction are part of the "public" to whom "(a)ll records relating to registered lands
in the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as
amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly
construed, it embraces every person. To say that only those who
have a present and existing interest of a pecuniary character in the
particular information sought are given the right of inspection is to
make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at
p. 387).
The petitioner, being a citizen who, as such is clothed with personality to seek redress
for the alleged obstruction of the exercise of the public right. We find no cogent
reason to deny his standing to bring the present suit.
2. For every right of the people recognized as fundamental, there lies a corresponding
duty on the part of those who govern, to respect and protect that right. That is the
very essence of the Bill of Rights in a constitutional regime. Only governments
operating under fundamental rules defining the limits of their power so as to shield
individual rights against its arbitrary exercise can properly claim to be constitutional
(Cooley, supra, at p. 5). Without a government's acceptance of the limitations
imposed upon it by the Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the rights pertaining to the
citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the
New Charter expressly mandate the duty of the State and its agents to afford access
to official records, documents, papers and in addition, government research data
used as basis for policy development, subject to such limitations as may be provided
by law. The guarantee has been further enhanced in the New Constitution with the
adoption of a policy of full public disclosure, this time "subject to reasonable
conditions prescribed by law," in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by what this
Court declared as an imperative duty of the government officials concerned to publish
all important legislative acts and resolutions of a public nature as well as all executive
orders and proclamations of general applicability. We granted mandamus in said
case, and in the process, We found occasion to expound briefly on the nature of said
duty:
* * * That duty must be enforced if the Constitutional right of the
people to be informed on matters of public concern is to be given
substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v.
Tuvera, supra, at 39). (Emphasis supplied).
The absence of discretion on the part of government agencia es in allowing the
examination of public records, specifically, the records in the Office of the Register of
Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the
examination is unlawful, or sheer, idle curiosity, we do not believe it
is the duty under the law of registration officers to concern
themselves with the motives, reasons, and objects of the person
seeking access to the records. It is not their prerogative to see that
the information which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it be wrong to
publish the contents of the records, it is the legislature and not the
officials having custody thereof which is called upon to devise a
remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government agencies
are without discretion in refusing disclosure of, or access to, information of public
concern. This is not to lose sight of the reasonable regulations which may be imposed
by said agencies in custody of public records on the manner in which the right to
information may be exercised by the public. In the Subido case, We recognized the
authority of the Register of Deeds to regulate the manner in which persons desiring to
do so, may inspect, examine or copy records relating to registered lands. However,
the regulations which the Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the end
that damage to or loss of, the records may be avoided, that undue
interference with the duties of the custodian of the books and
documents and other employees may be prevented, that the right
of other persons entitled to make inspection may be insured * * *
(Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a
municipal judge, to regulate the manner of inspection by the public of criminal docket
records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976,
71 SCRA 14). Said administrative case was filed against the respondent judge for his
alleged refusal to allow examination of the criminal docket records in his sala. Upon a
finding by the Investigating Judge that the respondent had allowed the complainant to
open and view the subject records, We absolved the respondent. In effect, We have
also held that the rules and conditions imposed by him upon the manner of examining
the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that
the authority to regulate the manner of examining public records does not carry with it
the power to prohibit. A distinction has to be made between the discretion to refuse
outright the disclosure of or access to a particular information and the authority to
regulate the manner in which the access is to be afforded. The first is a limitation
upon the availability of access to the information sought, which only the Legislature
may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the
government agency charged with the custody of public records. Its authority to
regulate access is to be exercised solely to the end that damage to, or loss of, public
records may be avoided, undue interference with the duties of said agencies may be
prevented, and more importantly, that the exercise of the same constitutional right by
other persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public
right to be enforced and the concomitant duty of the State are unequivocably set forth
in the Constitution. The decisive question on the propriety of the issuance of the writ
of mandamus in this case is, whether the information sought by the petitioner is within
the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of
public concern is a recognition of the essentiality of the free flow of ideas and
information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5,
1976, 17 SCRA 14). In the same way that free discussion enables members of
society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S.
88,102 [1939]), access to information of general interest aids the people in
democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them a
better perspective of the vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern is not
absolute. It does not open every door to any and all information. Under the
Constitution, access to official records, papers, etc., are "subject to limitations as may
be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt
certain types of information from public scrutiny, such as those affecting national
security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September
24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be circumscribed by the nature
of the information sought, i.e., (a) being of public concern or one that involves public
interest, and, (b) not being exempted by law from the operation of the constitutional
guarantee. The threshold question is, therefore, whether or not the information sought
is of public interest or public concern.
a. This question is first addressed to the government agency having custody of the
desired information. However, as already discussed, this does not give the agency
concerned any discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the information requested is not
of public concern, or, if it is of public concern, that the same has been exempted by
law from the operation of the guarantee. To hold otherwise will serve to dilute the
constitutional right. As aptly observed, ". . . the government is in an advantageous
position to marshall and interpret arguments against release . . ." (87 Harvard Law
Review 1511 [1974]). To safeguard the constitutional right, every denial of access by
the government agency concerned is subject to review by the courts, and in the
proper case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine in a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for
adequate notice to the public of the various laws which are to regulate the actions and
conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered
by the statutory right was the knowledge of those real estate transactions which some
believed to have been registered in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim of certain
government employees that they are civil service eligibles for the positions to which
they were appointed. The Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to

merit and fitness to be determined, as far as practicable, and
except as to positions which are policy determining, primarily
confidential or highly technical, by competitive examination. (Art. IX,
B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles. Public officers are at all times
accountable to the people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of public interest. For
mandamus to lie in a given case, the information must not be among the species
exempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil Service Law which would limit
the petitioner's right to know who are, and who are not, civil service eligibles. We take
judicial notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing secret about one's
civil service eligibility, if actually possessed. Petitioner's request is, therefore, neither
unusual nor unreasonable. And when, as in this case, the government employees
concerned claim to be civil service eligibles, the public, through any citizen, has a
right to verify their professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence
of express limitations under the law upon access to the register of civil service
eligibles for said position, the duty of the respondent Commission to confirm or deny
the civil service eligibility of any person occupying the position becomes imperative.
Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of

eligibles for the position of sanitarian, and to confirm or deny, the civil service
eligibility of Julian Sibonghanoy and Mariano Agas, for said position in the Health
Department of Cebu City, as requested by the petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,

Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

G.R. No. 198587, January 14, 2015 - SAUDI ARABIAN AIRLINES (SAUDIA)
AND BRENDA J. BETIA, Petitioners, v. MA. JOPETTE M. REBESENCIO,
MONTASSAH B. SACAR-ADIONG, ROUEN RUTH A. CRISTOBAL AND
LORAINE S. SCHNEIDER-CRUZ, Respondents.
SECOND DIVISION
G.R. No. 198587, January 14, 2015
SAUDI ARABIAN AIRLINES (SAUDIA) AND BRENDA J.
BETIA, Petitioners, v. MA. JOPETTE M. REBESENCIO, MONTASSAH B.
SACAR-ADIONG, ROUEN RUTH A. CRISTOBAL AND LORAINE S.
SCHNEIDER-CRUZ, Respondents.
DECISION
LEONEN, J.:
All Filipinos are entitled to the protection of the rights guaranteed in the
Constitution.
This is a Petition for Review on Certiorari with application for the issuance
of a temporary restraining order and/or writ of preliminary injunction
under Rule 45 of the 1997 Rules of Civil Procedure praying that judgment
be rendered reversing and setting aside the June 16, 2011 Decision 1 and
September 13, 2011 Resolution2 of the Court of Appeals in CA-G.R. SP.
No. 113006.
Petitioner Saudi Arabian Airlines (Saudia) is a foreign corporation
established and existing under the laws of Jeddah, Kingdom of Saudi
Arabia. It has a Philippine office located at 4/F, Metro House Building, Sen.
Gil J. Puyat Avenue, Makati City.3 In its Petition filed with this court,
Saudia identified itself as follows:chanroblesvirtuallawlibrary
1. Petitioner SAUDIA is a foreign corporation established and existing
under the Royal Decree No. M/24 of 18.07.1385H (10.02.1962G) in
Jeddah, Kingdom of Saudi Arabia ("KSA"). Its Philippine Office is located at
4/F Metro House Building, Sen, Gil J. Puyat Avenue, Makati City (Philippine
Office). It may be served with orders of this Honorable Court through
undersigned counsel at 4th and 6th Floors, Citibank Center Bldg., 8741
Paseo de Roxas, Makati City.4 (Emphasis supplied)
Respondents (complainants before the Labor Arbiter) were recruited and
hired by Saudia as Temporary Flight Attendants with the accreditation and
approval of the Philippine Overseas Employment Administration. 5 After
undergoing seminars required by the Philippine Overseas Employment
Administration for deployment overseas, as well as training modules
offered by Saudia (e.g., initial flight attendant/training course and
transition training), and after working as Temporary Flight Attendants,
respondents became Permanent Flight Attendants. They then entered into
Cabin Attendant contracts with Saudia: Ma. Jopette M. Rebesencio (Ma.
Jopette) on May 16, 1990;6 Montassah B. Sacar-Adiong (Montassah) and
Rouen Ruth A. Cristobal (Rouen Ruth) on May 22, 1993; 7 and Loraine
Schneider-Cruz (Loraine) on August 27, 1995. 8
Respondents continued their employment with Saudia until they were
separated from service on various dates in 2006. 9
Respondents contended that the termination of their employment was
illegal. They alleged that the termination was made solely because they
were pregnant.10
As respondents alleged, they had informed Saudia of their respective
pregnancies and had gone through the necessary procedures to process
their maternity leaves. Initially, Saudia had given its approval but later on
informed respondents that its management in Jeddah, Saudi Arabia had
disapproved their maternity leaves. In addition, it required respondents to
file their resignation letters.11
Respondents were told that if they did not resign, Saudia would terminate
them all the same. The threat of termination entailed the loss of benefits,
such as separation pay and ticket discount entitlements. 12
Specifically, Ma. Jopette received a call on October 16, 2006 from Saudia's
Base Manager, Abdulmalik Saddik (Abdulmalik).13 Montassah was informed
personally by Abdulmalik and a certain Faisal Hussein on October 20, 2006
after being required to report to the office one (1) month into her
maternity leave.14Rouen Ruth was also personally informed by Abdulmalik
on October 17, 2006 after being required to report to the office by her
Group Supervisor.15 Loraine received a call on October 12, 2006 from her
Group Supervisor, Dakila Salvador. 16
Saudia anchored its disapproval of respondents' maternity leaves and
demand for their resignation on its "Unified Employment Contract for
Female Cabin Attendants" (Unified Contract).17 Under the Unified Contract,
the employment of a Flight Attendant who becomes pregnant is rendered
void. It provides:chanroblesvirtuallawlibrary
(H) Due to the essential nature of the Air Hostess functions to be
physically fit on board to provide various services required in normal or
emergency cases on both domestic/international flights beside her role in
maintaining continuous safety and security of passengers, and since she
will not be able to maintain the required medical fitness while at work in
case of pregnancy, accordingly, if the Air Hostess becomes pregnant
at any time during the term of this contract, this shall render her
employment contract as void and she will be terminated due to
lack of medical fitness.18 (Emphasis supplied)
In their Comment on the present Petition,19 respondents emphasized that
the Unified Contract took effect on September 23, 2006 (the first day of
Ramadan),20 well after they had filed and had their maternity leaves
approved. Ma. Jopette filed her maternity leave application on September
5, 2006.21 Montassah filed her maternity leave application on August 29,
2006, and its approval was already indicated in Saudia's computer system
by August 30, 2006.22 Rouen Ruth filed her maternity leave application on
September 13, 2006,23 and Loraine filed her maternity leave application on
August 22, 2006.24
Rather than comply and tender resignation letters, respondents filed
separate appeal letters that were all rejected.25
Despite these initial rejections, respondents each received calls on the
morning of November 6, 2006 from Saudia's office secretary informing
them that their maternity leaves had been approved. Saudia, however,
was quick to renege on its approval. On the evening of November 6, 2006,
respondents again received calls informing them that it had received
notification from Jeddah, Saudi Arabia that their maternity leaves had
been disapproved.26
Faced with the dilemma of resigning or totally losing their benefits,
respondents executed handwritten resignation letters. In Montassah's and
Rouen Ruth's cases, their resignations were executed on Saudia's blank
letterheads that Saudia had provided. These letterheads already had the
word "RESIGNATION" typed on the subject portions of their headings when
these were handed to respondents.27
On November 8, 2007, respondents filed a Complaint against Saudia and
its officers for illegal dismissal and for underpayment of salary, overtime
pay, premium pay for holiday, rest day, premium, service incentive leave
pay, 13th month pay, separation pay, night shift differentials, medical
expense reimbursements, retirement benefits, illegal deduction, lay-over
expense and allowances, moral and exemplary damages, and attorney's
fees.28 The case was initially assigned to Labor Arbiter Hermino V. Suelo
and docketed as NLRC NCR Case No. 00-11-12342-07.
Saudia assailed the jurisdiction of the Labor Arbiter. 29 It claimed that all
the determining points of contact referred to foreign law and insisted that
the Complaint ought to be dismissed on the ground of forum non
conveniens.30 It added that respondents had no cause of action as they
resigned voluntarily.31
On December 12, 2008, Executive Labor Arbiter Fatima Jambaro-Franco
rendered the Decision32dismissing respondents' Complaint. The dispositive
portion of this Decision reads:chanroblesvirtuallawlibrary
WHEREFORE, premises' considered, judgment is hereby
rendered DISMISSING the instant complaint for lack of
jurisdiction/merit.33cralawlawlibrary
On respondents' appeal, the National Labor Relations Commission's Sixth
Division reversed the ruling of Executive Labor Arbiter Jambaro-Franco. It
explained that "[considering that complainants-appellants are OFWs, the
Labor Arbiters and the NLRC has [sic] jurisdiction to hear and decide their
complaint for illegal termination."34 On the matter of forum non
conveniens, it noted that there were no special circumstances that
warranted its abstention from exercising jurisdiction. 35 On the issue of
whether respondents were validly dismissed, it held that there was nothing
on record to support Saudia's claim that respondents resigned voluntarily.
The dispositive portion of the November 19, 2009 National Labor Relations
Commission Decision36reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, judgment is hereby rendered finding
the appeal impressed with merit. The respondents-appellees are hereby
directed to pay complainants-appellants the aggregate amount of
SR614,001.24 corresponding to their backwages and separation pay plus
ten (10%) percent thereof as attorney's fees. The decision of the Labor
Arbiter dated December 12, 2008 is hereby VACATED and SET ASIDE.
Attached is the computation prepared by this Commission and made an
integral part of this Decision.37cralawlawlibrary
In the Resolution dated February 11, 2010,38 the National Labor Relations
Commission denied petitioners' Motion for Reconsideration.
In the June 16, 2011 Decision,39 the Court of Appeals denied petitioners'
Rule 65 Petition and modified the Decision of the National Labor Relations
Commission with respect to the award of separation pay and backwages.
The dispositive portion of the Court of Appeals Decision
reads:chanroblesvirtuallawlibrary
WHEREFORE, the instant petition is hereby DENIED. The Decision dated
November 19, 2009 issued by public respondent, Sixth Division of the
National Labor Relations Commission - National Capital Region
is MODIFIED only insofar as the computation of the award of separation
pay and backwages. For greater clarity, petitioners are ordered to pay
private respondents separation pay which shall be computed from private
respondents' first day of employment up to the finality of this decision, at
the rate of one month per year of service and backwages which shall be
computed from the date the private respondents were illegally terminated
until finality of this decision. Consequently, the ten percent (10%)
attorney's fees shall be based on the total amount of the award. The
assailed Decision is affirmed in all other respects.
The labor arbiter is hereby DIRECTED to make a recomputation based on
the foregoing.40cralawlawlibrary
In the Resolution dated September 13, 2011,41 the Court of Appeals
denied petitioners' Motion for Reconsideration.
Hence, this Appeal was filed.
The issues for resolution are the following:
First, whether the Labor Arbiter and the National Labor Relations
Commission may exercise jurisdiction over Saudi Arabian Airlines and
apply Philippine law in adjudicating the present dispute;
Second, whether respondents' voluntarily resigned or were illegally
terminated; and
Lastly, whether Brenda J. Betia may be held personally liable along with
Saudi Arabian Airlines.chanRoblesvirtualLawlibrary
I prosecution of commercial gain or of the purpose and object of the
Summons were validly served on Saudia and jurisdiction over it validly
acquired.
There is no doubt that the pleadings and summons were served on Saudia
through its counsel.42 Saudia, however, claims that the Labor Arbiter and
the National Labor Relations Commission had no jurisdiction over it
because summons were never served on it but on "Saudia
Manila."43 Referring to itself as "Saudia Jeddah," it claims that "Saudia
Jeddah" and not "Saudia Manila" was the employer of respondents
because:
First, "Saudia Manila" was never a party to the Cabin Attendant contracts
entered into by respondents;
Second, it was "Saudia Jeddah" that provided the funds to pay for
respondents' salaries and benefits; and
Lastly, it was with "Saudia Jeddah" that respondents filed their
resignations.44
Saudia posits that respondents' Complaint was brought against the wrong
party because "Saudia Manila," upon which summons was served, was
never the employer of respondents.45
Saudia is vainly splitting hairs in its effort to absolve itself of liability.
Other than its bare allegation, there is no basis for concluding that "Saudia
Jeddah" is distinct from "Saudia Manila."
What is clear is Saudia's statement in its own Petition that what it has is a
"Philippine Office . . . located at 4/F Metro House Building, Sen. Gil J.
Puyat Avenue, Makati City."46 Even in the position paper that Saudia
submitted to the Labor Arbiter,47 what Saudia now refers to as "Saudia
Jeddah" was then only referred to as "Saudia Head Office at Jeddah,
KSA,"48 while what Saudia now refers to as "Saudia Manila" was then only
referred to as "Saudia's office in Manila."49
By its own admission, Saudia, while a foreign corporation, has a Philippine
office.
Section 3(d) of Republic Act No.. 7042, otherwise known as the Foreign
Investments Act of 1991, provides the
following:chanroblesvirtuallawlibrary
The phrase "doing business" shall include . . . opening offices,
whether called "liaison" offices or branches; . . . and any other act or
acts that imply a continuity of commercial dealings or arrangements and
contemplate to that extent the performance of acts or works, or the
exercise of some of the functions normally incident to, and in progressive
business organization. (Emphasis supplied)
A plain application of Section 3(d) of the Foreign Investments Act leads to
no other conclusion than that Saudia is a foreign corporation doing
business in the Philippines. As such, Saudia may be sued in the Philippines
and is subject to the jurisdiction of Philippine tribunals.
Moreover, since there is no real distinction between "Saudia Jeddah" and
"Saudia Manila" — the latter being nothing more than Saudia's local office
— service of summons to Saudia's office in Manila sufficed to vest
jurisdiction over Saudia's person in Philippine
tribunals.chanRoblesvirtualLawlibrary
II
Saudia asserts that Philippine courts and/or tribunals are not in a position
to make an intelligent decision as to the law and the facts. This is because
respondents' Cabin Attendant contracts require the application of the laws
of Saudi Arabia, rather than those of the Philippines. 50 It claims that the
difficulty of ascertaining foreign law calls into operation the principle
of forum non conveniens, thereby rendering improper the exercise of
jurisdiction by Philippine tribunals.51
A choice of law governing the validity of contracts or the interpretation of
its provisions dees not necessarily imply forum non conveniens. Choice of
law and forum non conveniens are entirely different matters.
Choice of law provisions are an offshoot of the fundamental principle of
autonomy of contracts. Article 1306 of the Civil Code firmly ensconces
this:chanroblesvirtuallawlibrary
Article 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order, or public
policy.
In contrast, forum non conveniens is a device akin to the rule against
forum shopping. It is designed to frustrate illicit means for securing
advantages and vexing litigants that would otherwise be possible if the
venue of litigation (or dispute resolution) were left entirely to the whim of
either party.
Contractual choice of law provisions factor into transnational litigation and
dispute resolution in one of or in a combination of four ways: (1)
procedures for settling disputes, e.g., arbitration; (2) forum, i.e., venue;
(3) governing law; and (4) basis for interpretation. Forum non
conveniens relates to, but is not subsumed by, the second of these.
Likewise, contractual choice of law is not determinative of jurisdiction.
Stipulating on the laws of a given jurisdiction as the governing law of a
contract does not preclude the exercise of jurisdiction by tribunals
elsewhere. The reverse is equally true: The assumption of jurisdiction by
tribunals does not ipso factomean that it cannot apply and rule on the
basis of the parties' stipulation. In Hasegawa v.
Kitamura:52ChanRoblesVirtualawlibrary
Analytically, jurisdiction and choice of law are two distinct concepts.
Jurisdiction considers whether it is fair to cause a defendant to travel to
this state; choice of law asks the further question whether the application
of a substantive law V'hich will determine the merits of the case is fair to
both parties. The power to exercise jurisdiction does not automatically give
a state constitutional authority to apply forum law. While jurisdiction and
the choice of the lex fori will often, coincide, the "minimum contacts" for
one do not always provide the necessary "significant contacts" for the
other. The question of whether the law of a state can be applied to a
transaction is different from the question of whether the courts of that
state have jurisdiction to enter a judgment.53cralawlawlibrary
As various dealings, commercial or otherwise, are facilitated by the
progressive ease of communication and travel, persons from various
jurisdictions find themselves transacting with each other. Contracts
involving foreign elements are, however, nothing new. Conflict of laws
situations precipitated by disputes and litigation anchored on these
contracts are not totally novel.
Transnational transactions entail differing laws on the requirements Q for
the validity of the formalities and substantive provisions of contracts and
their interpretation. These transactions inevitably lend themselves to the
possibility of various fora for litigation and dispute resolution. As observed
by an eminent expert on transnational law:chanroblesvirtuallawlibrary
The more jurisdictions having an interest in, or merely even a point of
contact with, a transaction or relationship, the greater the number of
potential fora for the resolution of disputes arising out of or related to that
transaction or relationship. In a world of increased mobility, where
business and personal transactions transcend national boundaries, the
jurisdiction of a number of different fora may easily be invoked in a single
or a set of related disputes.54cralawlawlibrary
Philippine law is definite as to what governs the formal or extrinsic validity
of contracts. The first paragraph of Article 17 of the Civil Code provides
that "[t]he forms and solemnities of contracts . . . shall be governed by
the laws of the country in which they are executed" 55 (i.e., lex loci
celebrationis).
In contrast, there is no statutorily established mode of settling conflict of
laws situations on matters pertaining to substantive content of contracts.
It has been noted that three (3) modes have emerged: (1) lex loci
contractus or the law of the place of the making; (2) lex loci solutionis or
the law of the place of performance; and (3) lex loci intentionis or the law
intended by the parties.56
Given Saudia's assertions, of particular relevance to resolving the present
dispute is lex loci intentionis.
An author observed that Spanish jurists and commentators "favor lex loci
intentionis."57 These jurists and commentators proceed from the Civil Code
of Spain, which, like our Civil Code, is silent on what governs the intrinsic
validity of contracts, and the same civil law traditions from which we draw
ours.
In this jurisdiction, this court, in Philippine Export and Foreign Loan
Guarantee v. V.P. Eusebio Construction, Inc.,58 manifested preference for
allowing the parties to select the law applicable to their
contract":chanroblesvirtuallawlibrary
No conflicts rule on essential validity of contracts is expressly provided for
in our laws. The rule followed by most legal systems, however, is that the
intrinsic validity of a contract must be governed by the lex contractus or
"proper law of the contract." This is the law voluntarily agreed upon by the
parties (the lex loci voluntatis) or the law intended by them either
expressly or implicitly (the lex loci intentionis). The law selected may be
implied from such factors as substantial connection with the transaction, or
the nationality or domicile of the parties. Philippine courts would do well to
adopt the first and most basic rule in most legal systems, namely, to allow
the parties to select the law applicable to their contract, subject to the
limitation that it is not against the law, morals, or public policy of the
forum and that the chosen law must bear a substantive relationship to the
transaction.59(Emphasis in the original)
Saudia asserts that stipulations set in the Cabin Attendant contracts
require the application of the laws of Saudi Arabia. It insists that the need
to comply with these stipulations calls into operation the doctrine of forum
non conveniens and, in turn, makes it necessary for Philippine tribunals to
refrain from exercising jurisdiction.
As mentioned, contractual choice of laws factors into transnational
litigation in any or a combination of four (4) ways. Moreover, forum non
conveniens relates to one of these: choosing between multiple possible
fora.
Nevertheless, the possibility of parallel litigation in multiple fora — along
with the host of difficulties it poses — is not unique to transnational
litigation. It is a difficulty that similarly arises in disputes well within the
bounds of a singe jurisdiction.
When parallel litigation arises strictly within the context of a single
jurisdiction, such rules as those on forum shopping, litis pendentia,
and res judicata come into operation. Thus, in the Philippines, the 1997
Rules on Civil Procedure provide for willful and deliberate forum shopping
as a ground not only for summary dismissal with prejudice but also for
citing parties and counsels in direct contempt, as well as for the imposition
of administrative sanctions.60 Likewise, the same rules expressly provide
that a party may seek the dismissal of a Complaint or another pleading
asserting a claim on the ground "[t]hat there is another action pending
between the same parties for the same cause," i.e., litis pendentia, or
"[t]hat the cause of action is barred by a prior judgment," 61 i.e., res
judicata.
Forum non conveniens, like the rules of forum shopping, litis pendentia,
and res judicata, is a means of addressing the problem of parallel
litigation. While the rules of forum shopping, litis pendentia, and res
judicata are designed to address the problem of parallel litigation within a
single jurisdiction, forum non conveniens is a means devised to address
parallel litigation arising in multiple jurisdictions.
Forum non conveniens literally translates to "the forum is
inconvenient."62 It is a concept in private international law and was devised
to combat the "less than honorable" reasons and excuses that litigants use
to secure procedural advantages, annoy and harass defendants, avoid
overcrowded dockets, and select a "friendlier" venue. 63 Thus, the doctrine
of forum non conveniens addresses the same rationale that the rule
against forum shopping does, albeit on a multijurisdictional scale.
Forum non conveniens, like res judicata,64 is a concept originating in
common law.65 However, unlike the rule on res judicata, as well as those
on litis pendentia and forum shopping, forum non conveniens finds no
textual anchor, whether in statute or in procedural rules, in our civil law
system. Nevertheless, jurisprudence has applied forum non conveniens as
basis for a court to decline its exercise of jurisdiction. 66
Forum non conveniens is soundly applied not only to address parallel
litigation and undermine a litigant's capacity to vex and secure undue
advantages by engaging in forum shopping on an international scale. It is
also grounded on principles of comity and judicial efficiency.
Consistent with the principle of comity, a tribunal's desistance in exercising
jurisdiction on account of forum non conveniens is a deferential gesture to
the tribunals of another sovereign. It is a measure that prevents the
former's having to interfere in affairs which are better and more
competently addressed by the latter. Further, forum non
conveniens entails a recognition not only that tribunals elsewhere
are better suited to rule on and resolve a controversy, but also, that these
tribunals are better positioned to enforce judgments and, ultimately, to
dispense justice. Forum non conveniens prevents the embarrassment of an
awkward situation where a tribunal is rendered incompetent in the face of
the greater capability — both analytical and practical — of a tribunal in
another jurisdiction.
The wisdom of avoiding conflicting and unenforceable judgments is as
much a matter of efficiency and economy as it is a matter of international
courtesy. A court would effectively be neutering itself if it insists on
adjudicating a controversy when it knows full well that it is in no position
to enforce its judgment. Doing so is not only an exercise in futility; it is an
act of frivolity. It clogs the dockets of a.tribunal and leaves it to waste its
efforts on affairs, which, given transnational exigencies, will be reduced to
mere academic, if not trivial, exercises.
Accordingly, under the doctrine of forum non conveniens, "a court, in
conflicts of law cases, may refuse impositions on its jurisdiction where it is
not the most 'convenient' or available forum and the parties are not
precluded from seeking remedies elsewhere." 67 In Puyat v. Zabarte,68 this
court recognized the following situations as among those that may warrant
a court's desistance from exercising jurisdiction:chanroblesvirtuallawlibrary
1) The belief that the matter can be better tried and decided elsewhere,
either because the main aspects of the case transpired in a foreign
jurisdiction or the material witnesses have their residence there;
2) The belief that the non-resident plaintiff sought the forum[,] a practice
known as forum shopping[,] merely to secure procedural advantages
or to convey or harass the defendant;
3) The unwillingness to extend local judicial facilities to non residents or
aliens when the docket may already be overcrowded;
4) The inadequacy of the local judicial machinery for effectuating the right
sought to be maintained; and
5) The difficulty of ascertaining foreign law. 69
In Bank of America, NT&SA, Bank of America International, Ltd. v. Court
of Appeals,70 this court underscored that a Philippine court may properly
assume jurisdiction over a case if it chooses to do so to the extent: "(1)
that the Philippine Court is one to which the parties may conveniently
resort to; (2) that the Philippine Court is in a position to make an
intelligent decision as to the law and the facts; and (3) that the Philippine
Court has or is likely to have power to enforce its decision." 71
The use of the word "may" (i.e., "may refuse impositions on its
jurisdiction"72) in the decisions shows that the matter of jurisdiction rests
on the sound discretion of a court. Neither the mere invocation of forum
non conveniens nor the averment of foreign elements operates to
automatically divest a court of jurisdiction. Rather, a court should
renounce jurisdiction only "after 'vital facts are established, to determine
whether special circumstances' require the court's desistance." 73 As the
propriety of applying forum non conveniens is contingent on a factual
determination, it is, therefore, a matter of defense. 74
The second sentence of Rule 9, Section 1 of the 1997 Rules of Civil
Procedure is exclusive in its recital of the grounds for dismissal that are
exempt from the omnibus motion rule: (1) lack of jurisdiction over the
subject matter; (2) litis pendentia; (3) res judicata; and (4) prescription.
Moreover, dismissal on account offorum non conveniens is a fundamentally
discretionary matter. It is, therefore, not a matter for a defendant to foist
upon the court at his or her own convenience; rather, it must be pleaded
at the earliest possible opportunity.
On the matter of pleading forum non conveniens, we state the rule,
thus: Forum non conveniens must not only be clearly pleaded as a ground
for dismissal; it must be pleaded as such at the earliest possible
opportunity. Otherwise, it shall be deemed waived.
This court notes that in Hasegawa,76 this court stated that forum non
conveniens is not a ground for a motion to dismiss. The factual ambience
of this case however does not squarely raise the viability of this doctrine.
Until the opportunity comes to review the use of motions to dismiss for
parallel litigation, Hasegawa remains existing doctrine.
Consistent with forum non conveniens as fundamentally a factual matter,
it is imperative that it proceed from & factually established basis. It would
be improper to dismiss an action pursuant to forum non conveniens based
merely on a perceived, likely, or hypothetical multiplicity of fora. Thus, a
defendant must also plead and show that a prior suit has, in fact, been
brought in another jurisdiction.
The existence of a prior suit makes real the vexation engendered by
duplicitous litigation, the embarrassment of intruding into the affairs of
another sovereign, and the squandering of judicial efforts in resolving a
dispute already lodged and better resolved elsewhere. As has been
noted:chanroblesvirtuallawlibrary
A case will not be stayed o dismissed on [forum] non conveniens grounds
unless the plaintiff is shown to have an available alternative forum
elsewhere. On this, the moving party bears the burden of proof.
A number of factors affect the assessment of an alternative forum's
adequacy. The statute of limitations abroad may have run, of the foreign
court may lack either subject matter or personal jurisdiction over the
defendant. . . . Occasionally, doubts will be raised as to the integrity or
impartiality of the foreign court (based, for example, on suspicions of
corruption or bias in favor of local nationals), as to the fairness of its
judicial procedures, or as to is operational efficiency (due, for example, to
lack of resources, congestion and delay, or interfering circumstances such
as a civil unrest). In one noted case, [it was found] that delays of 'up to a
quarter of a century' rendered the foreign forum... inadequate for these
purposes.77cralawlawlibrary
We deem it more appropriate and in the greater interest of prudence that
a defendant not only allege supposed dangerous tendencies in litigating in
this jurisdiction; the defendant must also show that such danger is real
and present in that litigation or dispute resolution has commenced in
another jurisdiction and that a foreign tribunal has chosen to exercise
jurisdiction.
III
Forum non conveniens finds no application and does not operate to divest
Philippine tribunals of jurisdiction and to require the application of foreign
law.
Saudia invokes forum non conveniens to supposedly effectuate the
stipulations of the Cabin Attendant contracts that require the application of
the laws of Saudi Arabia.
Forum non conveniens relates to forum, not to the choice of governing
law. Thai forum non conveniensmay ultimately result in the application of
foreign law is merely an incident of its application. In this strict
sense, forum non conveniens is not applicable. It is not the primarily
pivotal consideration in this case.
In any case, even a further consideration of the applicability of forum non
conveniens on the incidental matter of the law governing respondents'
relation with Saudia leads to the conclusion that it is improper for
Philippine tribunals to divest themselves of jurisdiction.
Any evaluation of the propriety of contracting parties' choice of a forum
and'its incidents must grapple with two (2) considerations: first, the
availability and adequacy of recourse to a foreign tribunal; and second,
the question of where, as between the forum court and a foreign court,
the balance of interests inhering in a dispute weighs more heavily.
The first is a pragmatic matter. It relates to the viability of ceding
jurisdiction to a foreign tribunal and can be resolved by juxtaposing the
competencies and practical circumstances of the tribunals in alternative
fora. Exigencies, like the statute of limitations, capacity to enforce orders
and judgments, access to records, requirements for the acquisition of
jurisdiction, and even questions relating to the integrity of foreign courts,
may render undesirable or even totally unfeasible recourse to a foreign
court. As mentioned, we consider it in the greater interest of prudence
that a defendant show, in pleading forum non conveniens, that litigation
has commenced in another jurisdiction and that a foieign tribunal has, in
fact, chosen to exercise jurisdiction.
Two (2) factors weigh into a court's appraisal of the balance of interests
inhering in a dispute: first, the vinculum which the parties and their
relation have to a given jurisdiction; and second, the public interest that
must animate a tribunal, in its capacity as an agent of the sovereign, in
choosing to assume or decline jurisdiction. The first is more concerned
with the parties, their personal circumstances, and private interests; the
second concerns itself with the state and the greater social order.
In considering the vinculum, a court must look into the preponderance of
linkages which the parties and their transaction may have to either
jurisdiction. In this respect, factors, such as the parties' respective
nationalities and places of negotiation, execution, performance,
engagement or deployment, come into play.
In considering public interest, a court proceeds with a consciousness that
it is an organ of the state. It must, thus, determine if the interests of the
sovereign (which acts through it) are outweighed by those of the
alternative jurisdiction. In this respect, the court delves into a
consideration of public policy. Should it find that public interest weighs
more heavily in favor of its assumption of jurisdiction, it should proceed in
adjudicating the dispute, any doubt or .contrary view arising from the
preponderance of linkages notwithstanding.
Our law on contracts recognizes the validity of contractual choice of law
provisions. Where such provisions exist, Philippine tribunals, acting as the
forum court, generally defer to the parties' articulated choice.
This is consistent with the fundamental principle of autonomy of contracts.
Article 1306 of the Civ:l Code expressly provides that "[t]he contracting
parties may establish 'such stipulations, clauses, terms and conditions as
they may deem convenient."78 Nevertheless, while a Philippine tribunal
(acting as the forum court) is called upon to respect the parties' choice of
governing law, such respect must not be so permissive as to lose sight of
considerations of law, morals, good customs, public order, or public policy
that underlie the contract central to the controversy.
Specifically with respect to public policy, in Pakistan International Airlines
Corporation v. Ople,79 this court explained that:chanroblesvirtuallawlibrary
counter-balancing the principle of autonomy of contracting parties is the
equally general rule that provisions of applicable law, especially provisions
relating to matters affected with public policy, are deemed written inta the
contract. Put a little differently, the governing principle is that parties may
not contract away applicable provisions of law especially peremptory
provisions dealing with matters heavily impressed with public
interest.80(Emphasis supplied)
Article II, Section 14 of the 1987 Constitution provides that "[t]he State ...
shall ensure the fundamental equality before the law of women and men."
Contrasted with Article II, Section 1 of the 1987 Constitution's statement
that "[n]o person shall ... be denied the equal protection of the laws,"
Article II, Section 14 exhorts the State to "ensure." This does not only
mean that the Philippines shall not countenance nor lend legal recognition
and approbation to measures that discriminate on the basis of one's being
male or female. It imposes an obligation to actively engage in securing the
fundamental equality of men and women.
The Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW), signed and ratified by the Philippines on July 15, 1980,
and on August 5, 1981, respectively,81 is part of the law of the land. In
view of the widespread signing and ratification of, as well as adherence (in
practice) to it by states, it may even be said that many provisions of the
CEDAW may have become customary international law. The CEDAW gives
effect to the Constitution's policy statement in Article II, Section 14. Article
I of the CEDAW defines "discrimination against women"
as:chanroblesvirtuallawlibrary
any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other
field.82cralawlawlibrary
The constitutional exhortation to ensure fundamental equality, as illumined
by its enabling law, the CEDAW, must inform and animate all the actions
of all personalities acting on behalf of the State. It is, therefore, the
bounden duty of this court, in rendering judgment on the disputes brought
before it, to ensure that no discrimination is heaped upon women on the
mere basis of their being women. This is a point so basic and central that
all our discussions and pronouncements — regardless of whatever
averments there may be of foreign law — must proceed from this premise.
So informed and animated, we emphasize the glaringly discriminatory
nature of Saudia's policy. As argued by respondents, Saudia's policy
entails the termination of employment of flight attendants who become
pregnant. At the risk of stating the obvious, pregnancy is an occurrence
that pertains specifically to women. Saudia's policy excludes from and
restricts employment on the basis of no other consideration but sex.
We do not lose sight of the reality that pregnancy does present physical
limitations that may render difficult the performance of functions
associated with being a flight attendant. Nevertheless, it would be the
height of iniquity to view pregnancy as a disability so permanent and
immutable that, it must entail the termination of one's employment. It is
clear to us that any individual, regardless of gender, may be subject to
exigencies that limit the performance of functions. However, we fail to
appreciate how pregnancy could be such an impairing occurrence that it
leaves no other recourse but the complete termination of the means
through which a woman earns a living.
Apart from the constitutional policy on the fundamental equality before the
law of men and women, it is settled that contracts relating to labor and
employment are impressed with public interest. Article 1700 of the Civil
Code provides that "[t]he relation between capital and labor are not
merely contractual. They are so impressed with public interest that labor
contracts must yield to the common good."
Consistent with this, this court's pronouncements in Pakistan International
Airlines Corporation83 are clear and
unmistakable:chanroblesvirtuallawlibrary
Petitioner PIA cannot take refuge in paragraph 10 of its employment
agreement which specifies, firstly, the law of Pakistan as the applicable law
of the agreement, and, secondly, lays the venue for settlement of any
dispute arising out of or in connection with the agreement "only [in] courts
of Karachi, Pakistan". The first clause of paragraph 10 cannot be invoked
to prevent the application of Philippine labor laws and'regulations to the
subject matter of this case, i.e., the employer-employee relationship
between petitioner PIA and private respondents. We have already pointed
out that the relationship is much affected with public interest and that the
otherwise applicable Philippine laws and regulations cannot be rendered
illusory by the parties agreeing upon some other law to govern their
relationship. . . . Under these circumstances, paragraph 10 of the
employment agreement cannot be given effect so as to oust Philippine
agencies and courts of the jurisdiction vested upon them by Philippine
law.84 (Emphasis supplied)
As the present dispute relates to (what the respondents allege to be) the
illegal termination of respondents' employment, this case is immutably a
matter of public interest and public policy. Consistent with clear
pronouncements in law and jurisprudence, Philippine laws properly find
application in and govern this case. 'Moreover, as this premise for Saudia's
insistence on the application forum non conveniens has been shattered, it
follows that Philippine tribunals may properly assume jurisdiction over the
present controversy. Philippine jurisprudence provides ample illustrations
of when a court's renunciation of jurisdiction on account of forum non
conveniens is proper or improper.'
In Philsec Investment Corporation v. Court of Appeals,85 this court noted
that the trial court failed to consider that one of the plaintiffs was a
domestic corporation, that one of the defendants was a Filipino, and that it
was the extinguishment of the latter's debt that was the object of the
transaction subject of the litigation. Thus, this court held, among others,
that the trial court's refusal to assume jurisdiction was not justified
by forum non conveniens and remanded the case to the trial court.
In Raytheon International, Inc. v. Rouzie, Jr.,86 this court sustained the
trial court's assumption of jurisdiction considering that the trial court could
properly enforce judgment on the petitioner which was a foreign
corporation licensed to do business in the Philippines.
In Pioneer International, Ltd. v. Guadiz, Jr.,87 this court found no reason to
disturb the trial court's assumption of jurisdiction over a case in which, as
noted by the trial court, "it is more convenient to hear and decide the case
in the Philippines because Todaro [the plaintiff] resides in the Philippines
and the contract allegedly breached involve[d] employment in the
Philippines."88
In Pacific Consultants International Asia, Inc. v. Schonfeld,89 this court held
that the fact that the complainant in an illegal dismissal case was a
Canadian citizen and a repatriate did not warrant the application of forum
non conveniens considering that: (1) the Labor Code does not
include forum non conveniens as a ground for the dismissal of a complaint
for illegal dismissal; (2) the propriety of dismissing a case based on forum
non conveniens requires a factual determination; and (3) the requisites for
assumption of jurisdiction as laid out in Bank of America, NT&SA90 were all
satisfied.
In contrast, this court ruled in The Manila Hotel Corp. v. National Labor
Relations Commission91 that the National Labor Relations Q Commission
was a seriously inconvenient forum. In that case, private respondent
Marcelo G. Santos was working in the Sultanate of Oman when he received
a letter from Palace Hotel recruiting him for employment in Beijing, China.
Santos accepted the offer. Subsequently, however, he was released from
employment supposedly due to business reverses arising from political
upheavals in China (i.e., the Tiananmen Square incidents of 1989). Santos
later filed a Complaint for illegal dismissal impleading Palace Hotel's
General Manager, Mr. Gerhard Schmidt, the Manila Hotel International
Company Ltd. (which was, responsible for training Palace Hotel's personnel
and staff), and the Manila Hotel Corporation (which owned 50% of Manila
Hotel International Company Ltd.'s capital stock).
In ruling against the National Labor Relations Commission's exercise of
jurisdiction, this court noted that the main aspects of the case transpired
in two (2) foreign jurisdictions, Oman and China, and that the case
involved purely foreign elements. Specifically, Santos was directly hired by
a foreign employer through correspondence sent to Oman. Also, the
proper defendants were neither Philippine nationals nor engaged in
business in the Philippines, while the main witnesses were not residents of
the Philippines. Likewise, this court noted that the National Labor Relations
Commission was in no position to conduct the following: first, determine
the law governing the employment contract, as it was entered into in
foreign soil; second, determine the facts, as Santos' employment was
terminated in Beijing; and third, enforce its judgment, since Santos'
employer, Palace Hotel, was incorporated under the laws of China and was
not even served with summons.
Contrary to Manila Hotel, the case now before us does not entail a
preponderance of linkages that favor a foreign jurisdiction.
Here, the circumstances of the parties and their relation do not
approximate the circumstances enumerated in Puyat,92 which this court
recognized as possibly justifying the desistance of Philippine tribunals from
exercising jurisdiction.
First, there is no basis for concluding that the case can be more
conveniently tried elsewhere. As established earlier, Saudia is doing
business in the Philippines. For their part, all four (4) respondents are
Filipino citizens maintaining residence in the Philippines and, apart from
their previous employment with Saudia, have no other connection to the
Kingdom of Saudi Arabia. It would even be to respondents' inconvenience
if this case were to be tried elsewhere.
Second, the records are bereft of any indication that respondents filed
their Complaint in an effort to engage in forum shopping or to vex and
inconvenience Saudia.
Third, there is no indication of "unwillingness to extend local judicial
facilities to non-residents or aliens."93 That Saudia has managed to bring
the present controversy all the way to this court proves this.
Fourth, it cannot be said that the local judicial machinery is inadequate for
effectuating the right sought to be maintained. Summons was properly
served on Saudia and jurisdiction over its person was validly acquired.
Lastly, there is not even room for considering foreign law. Philippine law
properly governs the present dispute.
As the question of applicable law has been settled, the supposed difficulty
of ascertaining foreign law (which requires the application of forum non
conveniens) provides no insurmountable inconvenience or special
circumstance that will justify depriving Philippine tribunals of jurisdiction.
Even if we were to assume, for the sake of discussion, that it is the laws of
Saudi Arabia which should apply, it does not follow that Philippine tribunals
should refrain from exercising jurisdiction. To. recall our pronouncements
in Puyat,94 as well as in Bank of America, NT&SA,95 it is not so much
the mere applicability of foreign law which calls into operation forum non
conveniens. Rather, what justifies a court's desistance from exercising
jurisdiction is "[t]he difficulty of ascertaining foreign law"96 or the inability
of a "Philippine Court to make an intelligent decision as to the law[.]" 97
Consistent with lex loci intentionis, to the extent that it is proper and
practicable (i.e., "to make an intelligent decision"98), Philippine tribunals
may apply the foreign law selected by the parties. In fact, (albeit without
meaning to make a pronouncement on the accuracy and reliability of
respondents' citation) in this case, respondents themselves have made
averments as to the laws of Saudi Arabia. In their Comment, respondents
write:chanroblesvirtuallawlibrary
Under the Labor Laws of Saudi Arabia and the Philippines[,] it is illegal and
unlawful to terminate the employment of any woman by virtue of
pregnancy. The law in Saudi Arabia is even more harsh and strict [sic] in
that no employer can terminate the employment of a female worker or
give her a warning of the same while on Maternity Leave, the specific
provision of Saudi Labor Laws on the matter is hereto quoted as
follows:chanroblesvirtuallawlibrary
"An employer may not terminate the employment of a female worker or
give her a warning of the same while on maternity leave." (Article 155,
Labor Law of the Kingdom of Saudi Arabia, Royal Decree No.
M/51.)99cralawlawlibrary
All told, the considerations for assumption of jurisdiction by Philippine
tribunals as outlined in Bank of America, NT&SA100 have been satisfied.
First, all the parties are based in the Philippines and all the material
incidents transpired in this jurisdiction. Thus, the parties may conveniently
seek relief from Philippine tribunals. Second, Philippine tribunals are in a
position to make an intelligent decision as to the law and the facts. Third,
Philippine tribunals are in a position to enforce their decisions. There is no
compelling basis for ceding jurisdiction to a foreign tribunal. Quite the
contrary, the immense public policy considerations attendant to this case
behoove Philippine tribunals to not shy away from their duty to rule on the
case.chanRoblesvirtualLawlibrary
IV
Respondents were illegally terminated.
In Bilbao v. Saudi Arabian Airlines,101 this court defined voluntary
resignation as "the voluntary act of an employee who is in a situation
where one believes that personal reasons cannot be sacrificed in favor of
the exigency of the service, and one has no other choice but to dissociate
oneself from employment. It is a formal pronouncement or relinquishment
of an office, with the intention of relinquishing the office accompanied by
the act of relinquishment."102 Thus, essential to the act of resignation is
voluntariness. It must be the result of an employee's exercise of his or her
own will.
In the same case of Bilbao, this court advanced a means for determining
whether an employee resigned voluntarily:chanroblesvirtuallawlibrary
As the intent to relinquish must concur with the overt act of
relinquishment, the acts of the employee before and after the alleged
resignation must be considered in determining whether he or she, in fact,
intended, to sever his or her employment.103 (Emphasis supplied)
On the other hand, constructive dismissal has been defined as "cessation
of work because 'continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank or a
diminution in pay' and other benefits."104
In Penaflor v. Outdoor Clothing Manufacturing Corporation,105 constructive
dismissal has been described as tantamount to "involuntarily [sic]
resignation due to the harsh, hostile, and unfavorable conditions set by the
employer."106 In the same case, it was noted that "[t]he gauge for
constructive dismissal is whether a reasonable person in the employee's
position would feel compelled to give up his employment under the
prevailing circumstances."107
Applying the cited standards on resignation and constructive dismissal, it
is clear that respondents were constructively dismissed. Hence, their
termination was illegal.
The termination of respondents' employment happened when they were
pregnant and expecting to incur costs on account of child delivery and
infant rearing. As noted by the Court of Appeals, pregnancy is a time when
they need employment to sustain their families.108 Indeed, it goes against
normal and reasonable human behavior to abandon one's livelihood in a
time of great financial need.
It is clear that respondents intended to remain employed with Saudia. All
they did was avail of their maternity leaves. Evidently, the very nature of a
maternity leave means that a pregnant employee will not report for
work only temporarily and that she will resume the performance of her
duties as soon as the leave allowance expires.
It is also clear that respondents exerted all efforts to' remain employed
with Saudia. Each of them repeatedly filed appeal letters (as much as five
[5] letters in the case of Rebesencio109) asking Saudia to reconsider the
ultimatum that they resign or be terminated along with the forfeiture of
their benefits. Some of them even went to Saudia's office to personally
seek reconsideration.110
Respondents also adduced a copy of the "Unified Employment Contract for
Female Cabin Attendants."111This contract deemed void the employment of
a flight attendant who becomes pregnant and threatened termination due
to lack of medical fitness.112 The threat of termination (and the forfeiture of
benefits that it entailed) is enough to compel a reasonable person in
respondents' position to give up his or her employment.
Saudia draws attention to how respondents' resignation letters were
supposedly made in their own handwriting. This minutia fails to surmount
all the other indications negating any voluntariness on respondents' part.
If at all, these same resignation letters are proof of how any supposed
resignation did not arise from respondents' own initiative. As earlier
pointed out, respondents' resignations were executed on Saudia's blank
letterheads that Saudia had provided. These letterheads already had the
word "RESIGNATION" typed on the subject portion of their respective
headings when these were handed to
respondents.113ChanRoblesVirtualawlibrary
"In termination cases, the burden of proving just or valid cause for
dismissing an employee rests on the employer."114 In this case, Saudia
makes much of how respondents supposedly completed their exit
interviews, executed quitclaims, received their separation pay, and took
more than a year to file their Complaint.115 If at all, however, these
circumstances prove only the fact of their occurrence, nothing more. The
voluntariness of respondents' departure from Saudia is non sequitur.
Mere compliance with standard procedures or processes, such as the
completion of their exit interviews, neither negates compulsion nor
indicates voluntariness.
As with respondent's resignation letters, their exit interview forms even
support their claim of illegal dismissal and militates against Saudia's
arguments. These exit interview forms, as reproduced by Saudia in its own
Petition, confirms the unfavorable conditions as regards respondents'
maternity leaves. Ma. Jopette's and Loraine's exit interview forms are
particularly telling:chanroblesvirtuallawlibrary
a. From Ma. Jopette's exit interview form:
3. In what respects has the job met or failed to meet your
expectations?
THE SUDDEN TWIST OF DECISION REGARDING THE MATERNITY LEAVE. 116
b. From Loraine's exit interview form:
1. What are your main reasons for leaving Saudia? What company are
you joining?
xxx xxx xxx
Others
CHANGING POLICIES REGARDING MATERNITY LEAVE (PREGNANCY) 117
As to respondents' quitclaims, in Phil. Employ Services and Resources, Inc.
v. Paramio,118 this court noted that "[i]f (a) there is clear proof that the
waiver was wangled from an unsuspecting or gullible person; or (b) the
terms of the settlement are unconscionable, and on their face invalid, such
quitclaims must be struck down as invalid or illegal."119 Respondents
executed their quitclaims after having been unfairly given an ultimatum to
resign or be terminated (and forfeit their
benefits).chanRoblesvirtualLawlibrary
V
Having been illegally and unjustly dismissed, respondents are entitled to
full backwages and benefits from the time of their termination until the
finality of this Decision. They are likewise entitled to separation pay in the
amount of one (1) month's salary for every year of service until the fmality
of this Decision, with a fraction of a year of at least six (6) months being
counted as one (1) whole year.
Moreover, "[m]oral damages are awarded in termination cases where the
employee's dismissal was attended by bad faith, malice or fraud, or where
it constitutes an act oppressive to labor, or where it was done in a manner
contrary to morals, good customs or public policy."120 In this case, Saudia
terminated respondents' employment in a manner that is patently
discriminatory and running afoul of the public interest that underlies
employer-employee relationships. As such, respondents are entitled to
moral damages.
To provide an "example or correction for the public good" 121 as against
such discriminatory and callous schemes, respondents are likewise entitled
to exemplary damages.
In a long line of cases, this court awarded exemplary damages to illegally
dismissed employees whose "dismissal[s were] effected in a wanton,
oppressive or malevolent manner."122 This court has awarded exemplary
damages to employees who were terminated on such frivolous, arbitrary,
and unjust grounds as membership in or involvement with labor
unions,123 injuries sustained in the course of employment, 124development
of a medical condition due to the employer's own violation of the
employment contract,125and lodging of a Complaint against the
employer.126 Exemplary damages were also awarded to employees who
were deemed illegally dismissed by an employer in an attempt to evade
compliance with statutorily established employee benefits. 127 Likewise,
employees dismissed for supposedly just causes, but in violation of due
process requirements, were awarded exemplary damages. 128
These examples pale in comparison to the present controversy. Stripped of
all unnecessary complexities, respondents were dismissed for no other
reason than simply that they were pregnant. This is as wanton,
oppressive, and tainted with bad faith as any reason for termination of
employment can be. This is no ordinary case of illegal dismissal. This is a
case of manifest gender discrimination. It is an affront not only to our
statutes and policies on employees' security of tenure, but more so, to the
Constitution's dictum of fundamental equality between men and women. 129
The award of exemplary damages is, therefore, warranted, not only to
remind employers of the need to adhere to the requirements of procedural
and substantive due process in termination of employment, but more
importantly, to demonstrate that gender discrimination should in no case
be countenanced.
Having been compelled to litigate to seek reliefs for their illegal and unjust
dismissal, respondents are likewise entitled to attorney's fees in the
amount of 10% of the total monetary award. 130
VI
Petitioner Brenda J. Betia may not be held liable.
A corporation has a personality separate and distinct from those of the
persons composing it. Thus, as a rule, corporate directors and officers are
not liable for the illegal termination of a corporation's employees. It is only
when they acted in bad faith or with malice that they become solidarity
liable with the corporation.131
In Ever Electrical Manufacturing, Inc. (EEMI) v. Samahang Manggagawa
ng Ever Electrical,132 this court clarified that "[b]ad faith does not connote
bad judgment or negligence; it imports a dishonest purpose or some moral
obliquity and conscious doing of wrong; it means breach of a known duty
through some motive or interest or ill will; it partakes of the nature of
fraud."133
Respondents have not produced proof to show that Brenda J. Betia acted
in bad faith or with malice as regards their termination. Thus, she may not
be held solidarity liable with Saudia.cralawred
WHEREFORE, with the MODIFICATIONS that first, petitioner Brenda J.
Betia is not solidarity liable with petitioner Saudi Arabian Airlines, and
second, that petitioner Saudi Arabian Airlines is liable for moral and
exemplary damages. The June 16, 2011 Decision and the September 13,
2011 Resolution of the Court of Appeals in CA-G.R. SP. No. 113006 are
hereby AFFIRMED in all other respects. Accordingly, petitioner Saudi
Arabian Airlines is ordered to pay respondents:
(1) Full backwages and all other benefits computed from the respective
dates in which each of the respondents were illegally terminated until
the finality of this Decision;
(2) Separation pay computed from the respective dates in which each of
the respondents commenced employment until the finality of this
Decision at the rate of one (1) month's salary for every year of service,
with a fraction of a year of at least six (6) months being counted as
one (1) whole year;
(3) Moral damages in the amount of P100,000.00 per respondent;
(4) Exemplary damages in the amount of P200,000.00 per respondent;
and
(5) Attorney's fees equivalent to 10% of the total award.
Interest of 6% per annum shall likewise be imposed on the total judgment
award from the finality of this Decision until full satisfaction thereof.
This case is REMANDED to the Labor Arbiter to make a detailed
computation of the amounts due to respondents which petitioner Saudi
Arabian Airlines should pay without delay.
SO ORDERED.chanroblesvirtuallawlibrary

Carpio, (Chairperson), Velasco, Jr.,*Del Castillo, and Mendoza, JJ., concur.


EN BANC
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.
x-----------------------x
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.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA
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.
x-----------------------x
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.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA,
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.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari
and prohibition are issues relating to, and borne by, an agreement forged in the turn
of the last century between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.1
In view of the impending expiration of the RP-US Military Bases Agreement in 1991,
the Philippines and the United States negotiated for a possible extension of the
military bases agreement. On September 16, 1991, the Philippine Senate rejected the
proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect,
would have extended the presence of US military bases in the Philippines.2 With the
expiration of the RP-US Military Bases Agreement, the periodic military exercises
conducted between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United States of
America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on "the
complementing strategic interests of the United States and the Philippines in the Asia-
Pacific region." Both sides discussed, among other things, the possible elements of
the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations3 that culminated in Manila on January 12 and 13, 1998.
Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively
signed by public respondent Secretary Siazon and Unites States Ambassador
Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.4
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines,5 the
Instrument of Ratification, the letter of the President6 and the VFA, for concurrence
pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn,
referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint
public hearings were held by the two Committees.7
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
4438 recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then
ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate,
by a two-thirds (2/3) vote9 of its members. Senate Resolution No. 443 was then re-
numbered as Senate Resolution No. 18.10
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US Armed
Forces and defense personnel may be present in the Philippines, and is quoted in its
full text, hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military members of the
United States Army, Navy, Marine Corps, Air Force, and Coast
Guard.
"2. The term ‘civilian personnel’ refers to individuals who are neither
nationals of, nor ordinary residents in the Philippines and who are
employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees
of the American Red Cross and the United Services Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to ensure
that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission
of United States personnel and their departure from the Philippines
in connection with activities covered by this agreement.
"2. United States military personnel shall be exempt from passport
and visa regulations upon entering and departing the Philippines.
"3. The following documents only, which shall be presented on
demand, shall be required in respect of United States military
personnel who enter the Philippines:
"(a) personal identity card issued by the appropriate
United States authority showing full name, date of birth,
rank or grade and service number (if any), branch of
service and photograph;
"(b) individual or collective document issued by the
appropriate United States authority, authorizing the travel
or visit and identifying the individual or group as United
States military personnel; and
"(c) the commanding officer of a military aircraft or vessel
shall present a declaration of health, and when required by
the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable
diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall
be conducted by the United States commanding officer in
accordance with the international health regulations as
promulgated by the World Health Organization, and
mutually agreed procedures.
"4. United States civilian personnel shall be exempt from visa
requirements but shall present, upon demand, valid passports upon
entry and departure of the Philippines.
"5. If the Government of the Philippines has requested the removal
of any United States personnel from its territory, the United States
authorities shall be responsible for receiving the person concerned
within its own territory or otherwise disposing of said person outside
of the Philippines.
"Article IV
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without test or fee, a
driving permit or license issued by the appropriate United States
authority to United States personnel for the operation of military or
official vehicles.
"2. Vehicles owned by the Government of the United States need
not be registered, but shall have appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States
personnel with respect to offenses committed within the Philippines
and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise
within the Philippines all criminal and disciplinary jurisdiction
conferred on them by the military law of the United States over
United States personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security of the
Philippines, punishable under the laws of the Philippines, but not under the laws of
the United States.
(b) United States authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including offenses
relating to the security of the United States, punishable under the
laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this
article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to
national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the primary right to exercise
jurisdiction over all offenses committed by United States personnel,
except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of
this Article.
(b) United States military authorities shall have the primary right to
exercise jurisdiction over United States personnel subject to the
military law of the United States in relation to.
(1) offenses solely against the property or security of the
United States or offenses solely against the property or
person of United States personnel; and
(2) offenses arising out of any act or omission done in
performance of official duty.
(c) The authorities of either government may request the
authorities of the other government to waive their primary
right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States
military authorities to maintain good order and discipline
among their forces, Philippine authorities will, upon
request by the United States, waive their primary right to
exercise jurisdiction except in cases of particular
importance to the Philippines. If the Government of the
Philippines determines that the case is of particular
importance, it shall communicate such determination to
the United States authorities within twenty (20) days after
the Philippine authorities receive the United States
request.
(e) When the United States military commander
determines that an offense charged by authorities of the
Philippines against United states personnel arises out of
an act or omission done in the performance of official duty,
the commander will issue a certificate setting forth such
determination. This certificate will be transmitted to the
appropriate authorities of the Philippines and will
constitute sufficient proof of performance of official duty for
the purposes of paragraph 3(b)(2) of this Article. In those
cases where the Government of the Philippines believes
the circumstances of the case require a review of the duty
certificate, United States military authorities and Philippine
authorities shall consult immediately. Philippine authorities
at the highest levels may also present any information
bearing on its validity. United States military authorities
shall take full account of the Philippine position. Where
appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the
actions taken.
(f) If the government having the primary right does not
exercise jurisdiction, it shall notify the authorities of the
other government as soon as possible.
(g) The authorities of the Philippines and the United States
shall notify each other of the disposition of all cases in
which both the authorities of the Philippines and the
United States have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who are to exercise jurisdiction in
accordance with the provisions of this article.
"5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine primary or
exclusive jurisdiction. Philippine authorities shall promptly notify United States military
authorities of the arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military authorities, if
they so request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States
shall be relieved of any obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period will not include any
time during which scheduled trial procedures are delayed because United States
authorities, after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
"7. Within the scope of their legal authority, United States and Philippine authorities
shall assist each other in the carrying out of all necessary investigation into offenses
and shall cooperate in providing for the attendance of witnesses and in the collection
and production of evidence, including seizure and, in proper cases, the delivery of
objects connected with an offense.
"8. When United States personnel have been tried in accordance with the provisions
of this Article and have been acquitted or have been convicted and are serving, or
have served their sentence, or have had their sentence remitted or suspended, or
have been pardoned, they may not be tried again for the same offense in the
Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were tried
by Philippine authorities.
"9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by
the law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
 (b) To be informed in advance of trial of the specific charge or
charges made against them and to have reasonable time to
prepare a defense;
(c) To be confronted with witnesses against them and to cross
examine such witnesses;
(d) To present evidence in their defense and to have compulsory
process for obtaining witnesses;
(e) To have free and assisted legal representation of their own
choice on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by
United States authorities, and to have such authorities present at all
judicial proceedings. These proceedings shall be public unless the
court, in accordance with Philippine laws, excludes persons who
have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United States
authorities. United States Personnel serving sentences in the Philippines shall have
the right to visits and material assistance.
"11. United States personnel shall be subject to trial only in Philippine courts of
ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine military or
religious courts.
"Article VI
Claims
"1. Except for contractual arrangements, including United States
foreign military sales letters of offer and acceptance and leases of
military equipment, both governments waive any and all claims
against each other for damage, loss or destruction to property of
each other’s armed forces or for death or injury to their military and
civilian personnel arising from activities to which this agreement
applies.
"2. For claims against the United States, other than contractual
claims and those to which paragraph 1 applies, the United States
Government, in accordance with United States law regarding
foreign claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss, personal injury or
death, caused by acts or omissions of United States personnel, or
otherwise incident to the non-combat activities of the United States
forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials, supplies, and
other property imported into or acquired in the Philippines by or on
behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all
Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove
such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions provided
in this paragraph shall also extend to any duty, tax, or other similar
charges which would otherwise be assessed upon such property
after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of
therein, provided that disposition of such property in the Philippines
to persons or entities not entitled to exemption from applicable
taxes and duties shall be subject to payment of such taxes, and
duties and prior approval of the Philippine Government.
"2. Reasonable quantities of personal baggage, personal effects,
and other property for the personal use of United States personnel
may be imported into and used in the Philippines free of all duties,
taxes and other similar charges during the period of their temporary
stay in the Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be made upon
prior approval of the appropriate Philippine authorities including
payment by the recipient of applicable duties and taxes imposed in
accordance with the laws of the Philippines. The exportation of
such property and of property acquired in the Philippines by United
States personnel shall be free of all Philippine duties, taxes, and
other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines in accordance with procedures stipulated in
implementing arrangements.
"2. Vessels operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines. The movement of vessels shall be in accordance with
international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary.
 "3. Vehicles, vessels, and aircraft operated by or for the United
States armed forces shall not be subject to the payment of landing
or port fees, navigation or over flight charges, or tolls or other use
charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall
observe local air traffic control regulations while in the Philippines.
Vessels owned or operated by the United States solely on United
States Government non-commercial service shall not be subject to
compulsory pilotage at Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which the parties have notified
each other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force
until the expiration of 180 days from the date on which either party gives the other
party notice in writing that it desires to terminate the agreement."
Via these consolidated11 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.
We have simplified the issues raised by the petitioners into the following:
I reason of the statute complained of.14
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25,
Article XVIII of the Constitution?
III
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?
IV
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?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on the ground that
the latter have not shown any interest in the case, and that petitioners failed to
substantiate that they have sustained, or will sustain direct injury as a result of the
operation of the VFA.12 Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which justifies their
standing.13
A party bringing a suit challenging the constitutionality of a law, act, or statute must
show "not only that the law is invalid, but also that he has sustained or in is in
immediate, or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way." He must
show that he has been, or is about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some burdens or penalties by
In the case before us, petitioners failed to show, to the satisfaction of this Court, that
they have sustained, or are in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers.15 On this point, it
bears stressing that a taxpayer’s suit refers to a case where the act complained of
directly involves the illegal disbursement of public funds derived from taxation.16 Thus,
in Bugnay Const. & Development Corp. vs. Laron17 , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a real party
in interest. 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, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the
present suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,18 sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed
on an item in an appropriation bull, we cannot, at this instance, similarly uphold
petitioners’ standing as members of Congress, in the absence of a clear showing of
any direct injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation
of the power of Congress to grant tax exemptions, are more apparent than real. While
it may be true that petitioners pointed to provisions of the VFA which allegedly impair
their legislative powers, petitioners failed however to sufficiently show that they have
in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of
standing in these cases. As aptly observed by the Solicitor General, 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.19
Notwithstanding, 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, as we have done in the early Emergency Powers Cases,20 where we had
occasion to rule:
"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled that
‘transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.’ We have since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform,
175 SCRA 343)." (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC,21 Daza vs. Singson,22 and Basco vs. Phil. Amusement and Gaming
Corporation,23 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 and 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. x x x"
24
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., thisCourt 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.
Although courts generally avoid having to decide a constitutional question based on
the doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others’ acts,25 this Court nevertheless
resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of
the Constitution applies, with regard to the exercise by the senate of its constitutional
power to concur with the VFA. 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.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of
the Senate on treaties or international agreements. Section 21, Article VII, which
herein respondents invoke, reads:
"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."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State."
Section 21, Article VII deals with treatise 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 subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision lays down the general rule on
treatise or international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax treatise or those
economic in nature. All treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
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. Section 25, Article XVIII 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.
It is our considered view that both constitutional provisions, far from contradicting
each other, actually share some common ground. These constitutional provisions
both embody phrases in the negative and thus, are deemed prohibitory in mandate
and character. In particular, Section 21 opens with the clause "No treaty x x x," and
Section 25 contains the phrase "shall not be allowed." Additionally, in both instances,
the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section
21, Article VII, and that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under Section 21, Article VII or
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the
Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern
such visits of military personnel, and further defines the rights of the United States
and the Philippine government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment, materials and supplies.
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 and in a limited sense, however, the provisions of section 21, Article VII
will find applicability with regard to the issue and for the sole purpose of determining
the number of votes required to obtain the valid concurrence of the Senate, as will be
further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in
the same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language which are not within the provision of the
particular enactment.26
In Leveriza vs. Intermediate Appellate Court,27 we enunciated:
"x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and generally
be so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, 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. On this score, the Constitution makes no
distinction between "transient’ and "permanent". Certainly, we find nothing in Section
25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the
Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, 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. Notably, a perusal of said constitutional provision reveals that
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. The use of comma and the disjunctive word "or" clearly signifies
disassociation and independence of one thing from the others included in the
enumeration,28 such that, the provision contemplates three different situations - 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.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My
first question is: If the country does enter into such kind of a treaty, must it cover
the three-bases, troops or facilities-or could the treaty entered into cover only
one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it
covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a
treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a
treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we
will find some. We just want to cover everything."29 (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare
such as nuclear weapons, guided missiles as well as huge sea vessels that can stay
afloat in the sea even for months and years without returning to their home country.
These military warships are actually used as substitutes for a land-home base not
only of military aircraft but also of military personnel and facilities. Besides, vessels
are mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (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 provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section
25, Article XVIII, the provision in the latter article requiring ratification by a majority of
the votes cast in a national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least
two-thirds of all the members of the Senate. On the other hand, Section 25, Article
XVIII simply provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members
of the Senate is clearly required so that the concurrence contemplated by law may be
validly obtained and deemed present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in the instant case-be "duly
concurred in by the Senate," it is very true however that said provision must be
related and viewed in light of the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be
construed in relation to the provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated under Section 25, Article XVIII
means that at least two-thirds of all the members of the Senate favorably vote to
concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed
of twenty-four (24) Senators.30Without a tinge of doubt, two-thirds (2/3) of this figure,
or not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in Section
21 of Article VII. The fact that there were actually twenty-three (23) incumbent
Senators at the time the voting was made,31 will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with
the proposed VFA, even if the two-thirds vote requirement is based on this figure of
actual members (23). In this regard, the fundamental law is clear that two-thirds of the
24 Senators, or at least 16 favorable votes, suffice so as to render compliance with
the strict constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should
be recognized as a treaty by the United States of America.
Petitioners content that the phrase "recognized as a treaty," embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government is
conclusive, on the point that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding, must only be accepted as
a treaty by the United States.
This Court is of the firm view that the phrase "recognized as a treaty" means that
the other contracting party accepts or acknowledges the agreement as a treaty.32 To
require the other contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence pursuant to its
Constitution,33 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.34
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.35 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 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."36 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.37
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.38 International law continues to make
no distinction between treaties and executive agreements: they are equally binding
obligations upon nations.39
In our jurisdiction, we have recognized the binding effect of executive agreements
even without the concurrence of the Senate or Congress. In Commissioner of
Customs vs. Eastern Sea Trading,40 we had occasion to pronounce:
"x x x the right of the Executive to enter into binding agreements without the necessity
of subsequent congressional approval has been confirmed by long usage. From the
earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been seriously questioned by
our courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301
U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs.
U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2,
pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp.
537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987
Constitution is enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the
other state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have
done everything to make it a treaty, then as far as we are concerned, we will accept it
as a treaty."41
The records reveal that the United States Government, through Ambassador Thomas
C. Hubbard, has stated that the United States government has fully committed to
living up to the terms of the VFA.42 For as long as the united States of America
accepts or acknowledges the VFA as a treaty, and binds itself further to comply with
its obligations under the treaty, there is indeed marked 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 an unequivocal expression of
our nation’s 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 or of the government, as the case may be, through which the formal acceptance
of the treaty is proclaimed.43 A State may provide in its domestic legislation the
process of ratification of a treaty. The consent of the State to be bound by a treaty is
expressed by ratification when: (a) the treaty provides for such ratification, (b) it is
otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject to ratification
appears from the full powers of its representative, or was expressed during the
negotiation.44
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.45
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international
law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article
II of the Constitution,46 declares that the 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.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international
obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official
thereof. As an integral part of the community of nations, we are responsible to assure
that our government, Constitution and laws will carry out our international
obligation.47 Hence, we cannot readily plead the Constitution as a convenient excuse
for non-compliance with our obligations, duties and responsibilities under international
law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by
the International Law Commission in 1949 provides: "Every State has the duty to
carry out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty."48
Equally important is Article 26 of the convention which provides that "Every treaty in
force is binding upon the parties to it and must be performed by them in good faith."
This is known as the principle of pacta sunt servanda which preserves the sanctity of
treaties and have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international tribunals.49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a
power and performing a task conferred upon him by the Constitution-the power to
enter into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave abuse of discretion on the part
of the chief Executive in ratifying the VFA, and referring the same to the Senate
pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of
positive duty enjoined or to act at all in contemplation of law.50
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nation’s foreign policy; his "dominance
in the field of foreign relations is (then) conceded."51 Wielding vast powers an
influence, his conduct in the external affairs of the nation, as Jefferson describes, is
"executive altogether."52
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.53 Consequently, 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.
It is the Court’s considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines and
limits of the powers vested in him by the Constitution. It is of no moment that the
President, in the exercise of his wide latitude of discretion and in the honest belief that
the VFA falls within the ambit of Section 21, Article VII of the Constitution, referred the
VFA to the Senate for concurrence under the aforementioned provision. Certainly, no
abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may
be imputed to the President in his act of ratifying the VFA and referring the same to
the Senate for the purpose of complying with the concurrence requirement embodied
in the fundamental law. In doing so, the President merely performed a constitutional
task and exercised a prerogative that chiefly pertains to the functions of his office.
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.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened
the scope of judicial inquiry into areas normally left to the political departments to
decide, such as those relating to national security, it has not altogether done away
with political questions such as those which arise in the field of foreign relations.54 The
High Tribunal’s function, as sanctioned by Article VIII, Section 1, "is merely (to) check
whether or not the governmental branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it erred or has a different view. In the
absence of a showing… (of) grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its corrective power…It has
no power to look into what it thinks is apparent error."55
As to the power to concur with treaties, the constitution lodges the same with the
Senate alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its
prerogative within the boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of power, much less grave
abuse thereof. 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. In this sense, the Senate partakes a principal, yet
delicate, role in keeping the principles of separation of powers and of checks and
balances alive and vigilantly ensures that these cherished rudiments remain true to
their form in a democratic government such as ours. The Constitution thus animates,
through this treaty-concurring power of the Senate, a healthy system of checks and
balances indispensable toward our nation’s pursuit of political maturity and growth.
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. For
the Constitution no less, maps out the distinct boundaries and limits the metes and
bounds within which each of the three political branches of government may exercise
the powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes,

Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a
petitioner, Sen. J.R. Salonga.

EN BANC
January 12, 2016
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, 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 CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF
NATIONAL 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
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS
SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST
REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA
WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA
DE JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO,
ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO HICAP, KABATAAN
PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND
LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO,
SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO,
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES
YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF
JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT
SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING
PANEL FOR THE PHILIPPINES ON EDCA, Respondents.
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,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA) between the Republic of the Philippines
and the United States of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or excess of jurisdiction when
they entered into EDCA with the U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that petitioners lack standing to
bring the suit. To support the legality of their actions, respondents invoke the 1987
Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset the basic
parameters of the constitutional powers and roles of the President and the Senate in
respect of the above issues. A more detailed discussion of these powers and roles will
be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT:
DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive Power in the
President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong
katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o Pangalawang
Pangulo o Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at ipagtatanggol
ang kanyang Konstitusyon, ipatutupad ang mga batas nito, magiging makatarungan
sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa
aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa
Saligang Batas5
The 1987 Constitution has "vested the executive power in the President of the
Republic of the Philippines."6 While the vastness of the executive power that has
been consolidated in the person of the President cannot be expressed fully in one
provision, the Constitution has stated the prime duty of the government, of which the
President is the head:
The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the Philippines, the power
to call upon the people to defend the State, and the President as Commander-
in-Chief
The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with the
constitutional provision on national territory. Hence, the President of the Philippines,
as the sole repository of executive power, is the guardian of the Philippine
archipelago, including all the islands and waters embraced therein and all other
territories over which it has sovereignty or jurisdiction. These territories consist of its
terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas; and the waters around,
between, and connecting the islands of the archipelago, regardless of their breadth
and dimensions.8
To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP),9 which is the protector of the people and the
state. The AFP's role is to secure the sovereignty of the State and the integrity of the
national territory.10 In addition, the Executive is constitutionally empowered to maintain
peace and order; protect life, liberty, and property; and promote the general welfare.11
In recognition of these powers, Congress has specified that the President must
oversee, ensure, and reinforce our defensive capabilities against external and internal
threats12 and, in the same vein, ensure that the country is adequately prepared for all
national and local emergencies arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the President
may call out the AFP to prevent or suppress instances of lawless violence, invasion or
rebellion,14 but not suspend the privilege of the writ of habeas corpus for a period
exceeding 60 days, or place the Philippines or any part thereof under martial law
exceeding that same span. In the exercise of these powers, the President is also
duty-bound to submit a report to Congress, in person or in writing, within 48 hours
from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus; and Congress may in turn revoke the proclamation or suspension.
The same provision provides for the Supreme Court's review of the factual basis for
the proclamation or suspension, as well as the promulgation of the decision within 30
days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the conduct of
foreign relations.15 Since every state has the capacity to interact with and engage in
relations with other sovereign states,16 it is but logical that every state must vest in an
agent the authority to represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is also the President
who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is dominant and
the President is traditionally accorded a wider degree of discretion in the conduct of
foreign affairs. The regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national embarrassment
and a plethora of other problems with equally undesirable consequences.17
The role of the President in foreign affairs is qualified by the Constitution in that the
Chief Executive must give paramount importance to the sovereignty of the nation, the
integrity of its territory, its interest, and the right of the sovereign Filipino people to
self-determination.18 In specific provisions, the President's power is also limited, or at
least shared, as in Section 2 of Article II on the conduct of war; Sections 20 and 21 of
Article VII on foreign loans, treaties, and international agreements; Sections 4(2) and
5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of
Article XVIII on treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and the role of
the Senate
Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however,
does not crystallize into absolute discretion to craft whatever instrument the Chief
Executive so desires. As previously mentioned, the Senate has a role in ensuring that
treaties or international agreements the President enters into, as contemplated in
Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its
members.
Previously, treaties under the 1973 Constitution required ratification by a majority of
the Batasang Pambansa,19except in instances wherein the President "may enter into
international treaties or agreements as the national welfare and interest may
require."20 This left a large margin of discretion that the President could use to bypass
the Legislature altogether. This was a departure from the 1935 Constitution, which
explicitly gave the President the power to enter into treaties only with the concurrence
of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties and international
agreements under the present Constitution is therefore shared with the Senate. This
shared role, petitioners claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases, and the
transition to Philippine independence
The presence of the U.S. military forces in the country can be traced to their pivotal
victory in the 1898 Battle of Manila Bay during the Spanish-American War.24 Spain
relinquished its sovereignty over the Philippine Islands in favor of the U.S. upon its
formal surrender a few months later.25 By 1899, the Americans had consolidated a
military administration in the archipelago.26
When it became clear that the American forces intended to impose colonial control
over the Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos
into an all-out war against the U.S.27 The Filipinos were ultimately defeated in the
Philippine-American War, which lasted until 1902 and led to the downfall of the first
Philippine Republic.28 The Americans henceforth began to strengthen their foothold in
the country.29 They took over and expanded the former Spanish Naval Base in Subic
Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained ground, the
U.S. manifested the desire to maintain military bases and armed forces in the
country.31 The U.S. Congress later enacted the Hare-Hawes-Cutting Act of 1933,
which required that the proposed constitution of an independent Philippines recognize
the right of the U.S. to maintain the latter's armed forces and military bases.32 The
Philippine Legislature rejected that law, as it also gave the U.S. the power to
unilaterally designate any part of Philippine territory as a permanent military or naval
base of the U.S. within two years from complete independence.33
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie
Act or the Philippine Independence Act of 1934. Compared to the old Hare-Hawes-
Cutting Act, the new law provided for the surrender to the Commonwealth
Government of "all military and other reservations" of the U.S. government in the
Philippines, except "naval reservations and refueling stations."34 Furthermore, the law
authorized the U.S. President to enter into negotiations for the adjustment and
settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence.35 Under the
Tydings-McDuffie Act, the U.S. President would proclaim the American withdrawal
and surrender of sovereignty over the islands 10 years after the inauguration of the
new government in the Philippines.36 This law eventually led to the promulgation of
the 1935 Philippine Constitution.
The original plan to surrender the military bases changed.37 At the height of the
Second World War, the Philippine and the U.S. Legislatures each passed resolutions
authorizing their respective Presidents to negotiate the matter of retaining military
bases in the country after the planned withdrawal of the U.S.38 Subsequently, in 1946,
the countries entered into the Treaty of General Relations, in which the U.S.
relinquished all control and sovereignty over the Philippine Islands, except the areas
that would be covered by the American military bases in the country.39 This treaty
eventually led to the creation of the post-colonial legal regime on which would hinge
the continued presence of U.S. military forces until 1991: the Military Bases
Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual
Defense Treaty (MDT) of 1951.40
B. Former legal regime on the presence of U.S. armed forces in the territory of
an independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries entered into
their first military arrangement pursuant to the Treaty of General Relations - the 1947
MBA.41 The Senate concurred on the premise of "mutuality of security
interest,"42 which provided for the presence and operation of 23 U.S. military bases in
the Philippines for 99 years or until the year 2046.43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the existing bases
or to acquire new ones as military necessity might require.44
A number of significant amendments to the 1947 MBA were made.45 With respect to
its duration, the parties entered into the Ramos-Rusk Agreement of 1966, which
reduced the term of the treaty from 99 years to a total of 44 years or until
1991.46 Concerning the number of U.S. military bases in the country, the Bohlen-
Serrano Memorandum of Agreement provided for the return to the Philippines of 17
U.S. military bases covering a total area of 117,075 hectares.47 Twelve years later, the
U.S. returned Sangley Point in Cavite City through an exchange of notes.48 Then,
through the Romulo-Murphy Exchange of Notes of 1979, the parties agreed to the
recognition of Philippine sovereignty over Clark and Subic Bases and the reduction of
the areas that could be used by the U.S. military.49 The agreement also provided for
the mandatory review of the treaty every five years.50 In 1983, the parties revised the
1947 MBA through the Romualdez-Armacost Agreement.51 The revision pertained to
the operational use of the military bases by the U.S. government within the context of
Philippine sovereignty,52 including the need for prior consultation with the Philippine
government on the former' s use of the bases for military combat operations or the
establishment of long-range missiles.53
Pursuant to the legislative authorization granted under Republic Act No. 9,54 the
President also entered into the 1947 Military Assistance Agreement55 with the U.S.
This executive agreement established the conditions under which U.S. military
assistance would be granted to the Philippines,56 particularly the provision of military
arms, ammunitions, supplies, equipment, vessels, services, and training for the
latter's defense forces.57 An exchange of notes in 1953 made it clear that the
agreement would remain in force until terminated by any of the parties.58
To further strengthen their defense and security relationship,59 the Philippines and the
U.S. next entered into the MDT in 1951. Concurred in by both the Philippine60 and the
U.S.61 Senates, the treaty has two main features: first, it allowed for mutual assistance
in maintaining and developing their individual and collective capacities to resist an
armed attack;62 and second, it provided for their mutual self-defense in the event of an
armed attack against the territory of either party.63 The treaty was premised on their
recognition that an armed attack on either of them would equally be a threat to the
security of the other.64
C. Current legal regime on the presence of U.S. armed forces in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the
U.S. negotiated for a possible renewal of their defense and security
relationship.65 Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for their
defense cooperation and the use of Philippine installations.66 One of the proposed
provisions included an arrangement in which U.S. forces would be granted the use of
certain installations within the Philippine naval base in Subic.67 On 16 September
1991, the Senate rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting paucity of any formal
agreement dealing with the treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises.69In the meantime, the
respective governments of the two countries agreed70 to hold joint exercises at a
substantially reduced level.71 The military arrangements between them were revived
in 1999 when they concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid down the
regulatory mechanism for the treatment of U.S. military and civilian personnel visiting
the country.74 It contains provisions on the entry and departure of U.S. personnel; the
purpose, extent, and limitations of their activities; criminal and disciplinary jurisdiction;
the waiver of certain claims; the importation and exportation of equipment, materials,
supplies, and other pieces of property owned by the U.S. government; and the
movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart
agreement (VFA II), which in turn regulated the treatment of Philippine military and
civilian personnel visiting the U.S.76 The Philippine Senate concurred in the first VFA
on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started arriving in
Mindanao to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at
simulating joint military maneuvers pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics
Support Agreement to "further the interoperability, readiness, and effectiveness of
their respective military forces"80 in accordance with the MDT, the Military Assistance
Agreement of 1953, and the VFA.81 The new agreement outlined the basic terms,
conditions, and procedures for facilitating the reciprocal provision of logistics support,
supplies, and services between the military forces of the two countries.82 The phrase
"logistics support and services" includes billeting, operations support, construction
and use of temporary structures, and storage services during an approved activity
under the existing military arrangements.83 Already extended twice, the agreement
will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities
within certain "Agreed Locations" in the country. It was not transmitted to the Senate
on the executive's understanding that to do so was no longer
necessary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and
the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force in the two
countries.86
According to the Philippine government, the conclusion of EDCA was the result of
intensive and comprehensive negotiations in the course of almost two years.87 After
eight rounds of negotiations, the Secretary of National Defense and the U.S.
Ambassador to the Philippines signed the agreement on 28 April 2014.88 President
Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified during the
oral arguments90 that the Philippine and the U.S. governments had yet to agree
formally on the specific sites of the Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality
of EDCA. They primarily argue that it should have been in the form of a treaty
concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the
parties ordered to file their respective memoranda, the Senators adopted Senate
Resolution No. (SR) 105.91 The resolution expresses the "strong sense"92 of the
Senators that for EDCA to become valid and effective, it must first be transmitted to
the Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department committed grave
abuse of discretion in entering into EDCA in the form of an executive agreement. For
this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present
 B. Whether the President may enter into an executive agreement on
foreign military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the
Constitution, as well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down
EDCA for violating the Constitution. They stress that our fundamental law is explicit in
prohibiting the presence of foreign military forces in the country, except under a treaty
concurred in by the Senate. Before this Court may begin to analyze the
constitutionality or validity of an official act of a coequal branch of government,
however, petitioners must show that they have satisfied all the essential requisites for
judicial review.93
Distinguished from the general notion of judicial power, the power of judicial review
specially refers to both the authority and the duty of this Court to determine whether a
branch or an instrumentality of government has acted beyond the scope of the latter's
constitutional powers.94 As articulated in Section 1, Article VIII of the Constitution, the
power of judicial review involves the power to resolve cases in which the questions
concern the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed
this "moderating power" as part of the system of checks and balances under the
Constitution. In our fundamental law, the role of the Court is to determine whether a
branch of government has adhered to the specific restrictions and limitations of the
latter's power:96
The separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the
fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. x x
x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the
Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended
to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the
said instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they should be in
any living constitution. x x x. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by
the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. x x x x. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution.
The scope of that power has been extended to the determination of whether in
matters traditionally considered to be within the sphere of appreciation of another
branch of government, an exercise of discretion has been attended with grave
abuse.97 The expansion of this power has made the political question doctrine "no
longer the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry
or review."98
This moderating power, however, must be exercised carefully and only if it cannot be
completely avoided. We stress that our Constitution is so incisively designed that it
identifies the spheres of expertise within which the different branches of government
shall function and the questions of policy that they shall resolve.99 Since the power of
judicial review involves the delicate exercise of examining the validity or
constitutionality of an act of a coequal branch of government, this Court must
continually exercise restraint to avoid the risk of supplanting the wisdom of the
constitutionally appointed actor with that of its own.100
Even as we are left with no recourse but to bare our power to check an act of a
coequal branch of government - in this case the executive - we must abide by the
stringent requirements for the exercise of that power under the Constitution. Demetria
v. Alba101 and Francisco v. House of Representatives102 cite the "pillars" of the
limitations on the power of judicial review as enunciated in the concurring opinion of
U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as required by
the facts of the case
3. That judgment may not be sustained on some other ground
4. That there be actual injury sustained by the party by reason of the
operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it exercises its power
of judicial review.105 Guided by these pillars, it may invoke the power only when the
following four stringent requirements are satisfied: (a) there is an actual case or
controversy; (b) petitioners possess locus standi; (c) the question of constitutionality
is raised at the earliest opportunity; and (d) the issue of constitutionality is the lis
mota of the case.106 Of these four, the first two conditions will be the focus of our
discussion.
1. Petitioners have shown the presence of an actual case or controversy.
The OSG maintains107 that there is no actual case or controversy that exists, since the
Senators have not been deprived of the opportunity to invoke the privileges of the
institution they are representing. It contends that the nonparticipation of the Senators
in the present petitions only confirms that even they believe that EDCA is a binding
executive agreement that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position through SR
105.108 Through the Resolution, the Senate has taken a position contrary to that of the
OSG. As the body tasked to participate in foreign affairs by ratifying treaties, its belief
that EDCA infringes upon its constitutional role indicates that an actual controversy -
albeit brought to the Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the present
proceedings as basis for finding that there is no actual case or controversy before us.
We point out that the focus of this requirement is the ripeness for adjudication of the
matter at hand, as opposed to its being merely conjectural or anticipatory.109 The case
must involve a definite and concrete issue involving real parties with conflicting legal
rights and legal claims admitting of specific relief through a decree conclusive in
nature.110 It should not equate with a mere request for an opinion or advice on what
the law would be upon an abstract, hypothetical, or contingent state of facts.111 As
explained in Angara v. Electoral Commission:112
[The] power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
(Emphases supplied)
We find that the matter before us involves an actual case or controversy that is
already ripe for adjudication. The Executive Department has already sent an official
confirmation to the U.S. Embassy that "all internal requirements of the Philippines x x
x have already been complied with."113 By this exchange of diplomatic notes, the
Executive Department effectively performed the last act required under Article XII(l) of
EDCA before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the country shall
only be allowed by virtue of a treaty concurred in by the Senate. Hence, the
performance of an official act by the Executive Department that led to the entry into
force of an executive agreement was sufficient to satisfy the actual case or
controversy requirement.
2. While petitioners Saguisag et. al., do not have legal standing, they
nonetheless raise issues involving matters of transcendental importance.
The question of locus standi or legal standing focuses on the determination of
whether those assailing the governmental act have the right of appearance to bring
the matter to the court for adjudication.114 They must show that they have a personal
and substantial interest in the case, such that they have sustained or are in
immediate danger of sustaining, some direct injury as a consequence of the
enforcement of the challenged governmental act.115 Here, "interest" in the question
involved must be material - an interest that is in issue and will be affected by the
official act - as distinguished from being merely incidental or general.116 Clearly, it
would be insufficient to show that the law or any governmental act is invalid, and that
petitioners stand to suffer in some indefinite way.117 They must show that they have a
particular interest in bringing the suit, and that they have been or are about to be
denied some right or privilege to which they are lawfully entitled, or that they are
about to be subjected to some burden or penalty by reason of the act complained
of.118 The reason why those who challenge the validity of a law or an international
agreement are required to allege the existence of a personal stake in the outcome of
the controversy is "to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the
Senate as a body has the requisite standing, but considering that it has not formally
filed a pleading to join the suit, as it merely conveyed to the Supreme Court its sense
that EDCA needs the Senate's concurrence to be valid, petitioners continue to suffer
from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as citizens
may dodge the requirement of having to establish a direct and personal interest if
they show that the act affects a public right.120 In arguing that they have legal
standing, they claim121 that the case they have filed is a concerned citizen's suit. But
aside from general statements that the petitions involve the protection of a public
right, and that their constitutional rights as citizens would be violated, they fail to make
any specific assertion of a particular public right that would be violated by the
enforcement of EDCA. For their failure to do so, the present petitions cannot be
considered by the Court as citizens' suits that would justify a disregard of the
aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners122 aver that the
implementation of EDCA would result in the unlawful use of public funds. They
emphasize that Article X(1) refers to an appropriation of funds; and that the
agreement entails a waiver of the payment of taxes, fees, and rentals. During the oral
arguments, however, they admitted that the government had not yet appropriated or
actually disbursed public funds for the purpose of implementing the agreement.123 The
OSG, on the other hand, maintains that petitioners cannot sue as
taxpayers.124Respondent explains that EDCA is neither meant to be a tax measure,
nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act complained of directly
involves the illegal disbursement of public funds derived from taxation.125 Here, those
challenging the act must specifically show that they have sufficient interest in
preventing the illegal expenditure of public money, and that they will sustain a direct
injury as a result of the enforcement of the assailed act.126 Applying that principle to
this case, they must establish that EDCA involves the exercise by Congress of its
taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We
emphasize that a taxpayers' suit contemplates a situation in which there is already an
appropriation or a disbursement of public funds.128 A reading of Article X(l) of EDCA
would show that there has been neither an appropriation nor an authorization of
disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the availability of appropriated
funds authorized for these purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would require the
disbursement of public funds, the money must come from appropriated funds that are
specifically authorized for this purpose. Under the agreement, before there can even
be a disbursement of public funds, there must first be a legislative action. Until and
unless the Legislature appropriates funds for EDCA, or unless petitioners can
pinpoint a specific item in the current budget that allows expenditure under the
agreement, we cannot at this time rule that there is in fact an appropriation or a
disbursement of funds that would justify the filing of a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list
representatives have the standing to challenge the act of the Executive Department,
especially if it impairs the constitutional prerogatives, powers, and privileges of their
office. While they admit that there is no incumbent Senator who has taken part in the
present petition, they nonetheless assert that they also stand to sustain a derivative
but substantial injury as legislators. They argue that under the Constitution, legislative
power is vested in both the Senate and the House of Representatives; consequently,
it is the entire Legislative Department that has a voice in determining whether or not
the presence of foreign military should be allowed. They maintain that as members of
the Legislature, they have the requisite personality to bring a suit, especially when a
constitutional issue is raised.
The OSG counters130 that petitioners do not have any legal standing to file the suits
concerning the lack of Senate concurrence in EDCA. Respondent emphasizes that
the power to concur in treaties and international agreements is an "institutional
prerogative" granted by the Constitution to the Senate. Accordingly, the OSG argues
that in case of an allegation of impairment of that power, the injured party would be
the Senate as an institution or any of its incumbent members, as it is the Senate's
constitutional function that is allegedly being violated.
The legal standing of an institution of the Legislature or of any of its Members has
already been recognized by this Court in a number of cases.131 What is in question
here is the alleged impairment of the constitutional duties and powers granted to, or
the impermissible intrusion upon the domain of, the Legislature or an institution
thereof.132 In the case of suits initiated by the legislators themselves, this Court has
recognized their standing to question the validity of any official action that they claim
infringes the prerogatives, powers, and privileges vested by the Constitution in their
office.133 As aptly explained by Justice Perfecto in Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that the latter act
within the bounds of the Constitution which, as representatives of the people,
they should uphold, unless they are to commit a flagrant betrayal of public trust. They
are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not
trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of Congress who are
challenging the official act have standing only to the extent that the alleged violation
impinges on their right to participate in the exercise of the powers of the institution of
which they are members.135 Legislators have the standing "to maintain inviolate the
prerogatives, powers, and privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action, which they claim infringes
their prerogatives as legislators."136 As legislators, they must clearly show that there
was a direct injury to their persons or the institution to which they belong.137
As correctly argued by respondent, the power to concur in a treaty or an international
agreement is an institutional prerogative granted by the Constitution to the Senate,
not to the entire Legislature. In Pimentel v. Office of the Executive Secretary, this
Court did not recognize the standing of one of the petitioners therein who was a
member of the House of Representatives. The petition in that case sought to compel
the transmission to the Senate for concurrence of the signed text of the Statute of the
International Criminal Court. Since that petition invoked the power of the Senate to
grant or withhold its concurrence in a treaty entered into by the Executive
Department, only then incumbent Senator Pimentel was allowed to assert that
authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the
standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the
Executive for the following reasons.
In any case, petitioners raise issues involving matters of transcendental importance.
Petitioners138 argue that the Court may set aside procedural technicalities, as the
present petition tackles issues that are of transcendental importance. They point out
that the matter before us is about the proper exercise of the Executive Department's
power to enter into international agreements in relation to that of the Senate to concur
in those agreements. They also assert that EDCA would cause grave injustice, as
well as irreparable violation of the Constitution and of the Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that
the present petitions involve matters of transcendental importance in order to cure
their inability to comply with the constitutional requirement of standing. Respondent
bewails the overuse of "transcendental importance" as an exception to the traditional
requirements of constitutional litigation. It stresses that one of the purposes of these
requirements is to protect the Supreme Court from unnecessary litigation of
constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal stance towards the
requirement of legal standing, especially when paramount interest is involved. Indeed,
when those who challenge the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound discretion and take
cognizance of the suit. It may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a law or any other
government act.
While this Court has yet to thoroughly delineate the outer limits of this doctrine, we
emphasize that not every other case, however strong public interest may be, can
qualify as an issue of transcendental importance. Before it can be impelled to brush
aside the essential requisites for exercising its power of judicial review, it must at the
very least consider a number of factors: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case of disregard of a constitutional
or statutory prohibition by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party that has a more direct and specific
interest in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties, together with the oral
arguments, shows that petitioners have presented serious constitutional issues that
provide ample justification for the Court to set aside the rule on standing. The
transcendental importance of the issues presented here is rooted in the Constitution
itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already been complied with."142 It behooves
the Court in this instance to take a liberal stance towards the rule on standing and to
determine forthwith whether there was grave abuse of discretion on the part of the
Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on
foreign military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the
Constitution, as well as with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes the duty to
defend the State, for which purpose he may use that power in the conduct of
foreign relations
Historically, the Philippines has mirrored the division of powers in the U.S.
government. When the Philippine government was still an agency of the Congress of
the U.S., it was as an agent entrusted with powers categorized as executive,
legislative, and judicial, and divided among these three great branches.143 By this
division, the law implied that the divided powers cannot be exercised except by the
department given the power.144
This divide continued throughout the different versions of the Philippine Constitution
and specifically vested the supreme executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the Philippines when the
country attained independence. One of the principal functions of the supreme
executive is the responsibility for the faithful execution of the laws as embodied by the
oath of office.146 The oath of the President prescribed by the 1987 Constitution reads
thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my
duties as President (or Vice-President or Acting President) of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God. (In case of
affirmation, last sentence will be omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation imposed on
the President, and not a separate grant of power.148 Section 1 7, Article VII of the
Constitution, expresses this duty in no uncertain terms and includes it in the provision
regarding the President's power of control over the executive department, viz:
The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require
this oath from the President. In the 1973 Constitution, for instance, the provision
simply gives the President control over the ministries.149 A similar language, not in the
form of the President's oath, was present in the 1935 Constitution, particularly in the
enumeration of executive functions.150 By 1987, executive power was codified not
only in the Constitution, but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in executive
power and is intimately related to the other executive functions. These functions
include the faithful execution of the law in autonomous regions;152 the right to
prosecute crimes;153 the implementation of transportation projects;154 the duty to
ensure compliance with treaties, executive agreements and executive orders;155 the
authority to deport undesirable aliens;156 the conferment of national awards under the
President's jurisdiction;157 and the overall administration and control of the executive
department.158
These obligations are as broad as they sound, for a President cannot function with
crippled hands, but must be capable of securing the rule of law within all territories of
the Philippine Islands and be empowered to do so within constitutional limits.
Congress cannot, for instance, limit or take over the President's power to adopt
implementing rules and regulations for a law it has enacted.159
More important, this mandate is self-executory by virtue of its being inherently
executive in nature.160 As Justice Antonio T. Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or execution of self-
executory constitutional powers vested in the President, the rule-making power of the
President is not a delegated legislative power. The most important self-executory
constitutional power of the President is the President's constitutional duty and
mandate to "ensure that the laws be faithfully executed." The rule is that the President
can execute the law without any delegation of power from the legislature.
The import of this characteristic is that the manner of the President's execution
of the law, even if not expressly granted by the law, is justified by necessity and
limited only by law, since the President must "take necessary and proper steps
to carry into execution the law."162 Justice George Malcolm states this principle in a
grand manner:163
The executive should be clothed with sufficient power to administer efficiently the
affairs of state. He should have complete control of the instrumentalities through
whom his responsibility is discharged. It is still true, as said by Hamilton, that "A
feeble executive implies a feeble execution of the government. A feeble execution is
but another phrase for a bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The mistakes of State
governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The Congress of the
United States clearly intended that the Governor-General's power should be
commensurate with his responsibility. The Congress never intended that the
Governor-General should be saddled with the responsibility of administering the
government and of executing the laws but shorn of the power to do so. The interests
of the Philippines will be best served by strict adherence to the basic principles of
constitutional government.
In light of this constitutional duty, it is the President's prerogative to do whatever is
legal and necessary for Philippine defense interests. It is no coincidence that the
constitutional provision on the faithful execution clause was followed by that on the
President's commander-in-chief powers,164 which are specifically granted during
extraordinary events of lawless violence, invasion, or rebellion. And this duty of
defending the country is unceasing, even in times when there is no state of lawlesss
violence, invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution
clause of the Constitution to do nothing when the call of the moment requires
increasing the military's defensive capabilities, which could include forging alliances
with states that hold a common interest with the Philippines or bringing an
international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's
Dissenting Opinion as the beginning of a "patent misconception."165 His dissent
argues that this approach taken in analyzing the President's role as executor of the
laws is preceded by the duty to preserve and defend the Constitution, which was
allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to appreciate the
nuances of the analysis, if read holistically and in context. The concept that the
President cannot function with crippled hands and therefore can disregard the need
for Senate concurrence in treaties167 was never expressed or implied. Rather, the
appropriate reading of the preceding analysis shows that the point being elucidated is
the reality that the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must resolve
issues imbued with both concerns to the full extent of his powers, subject only to the
limits supplied by law. In other words, apart from an expressly mandated limit, or an
implied limit by virtue of incompatibility, the manner of execution by the President
must be given utmost deference. This approach is not different from that taken by the
Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority to
bypass constitutional safeguards and limits. In fact, it specifies what these limitations
are, how these limitations are triggered, how these limitations function, and what can
be done within the sphere of constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that
the foreign relations power of the President should not be interpreted in
isolation.168 The analysis itself demonstrates how the foreign affairs function, while
mostly the President's, is shared in several instances, namely in Section 2 of Article II
on the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial
review of executive acts; Sections 4 and 25 of Article XVIII on treaties and
international agreements entered into prior to the Constitution and on the presence of
foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the two
major presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of
foreign affairs is not novel to the Court. The President's act of treating EDCA as an
executive agreement is not the principal power being analyzed as the Dissenting
Opinion seems to suggest. Rather, the preliminary analysis is in reference to the
expansive power of foreign affairs. We have long treated this power as something the
Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to
the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question. Neither could petitioners herein assail
the said determination by the Executive Department via the instant petition for
certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held
that "[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our international
relations, embarrassment - perhaps serious embarrassment - is to
be avoided and success for our aims achieved, congressional
legislation which is to be made effective through negotiation and
inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory
restriction which would not be admissible where domestic
affairs alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v.
Executive Secretary and Pimentel v. Executive Secretary; its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent in
Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the
nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best
available information and can decide with decisiveness .... It is also
the President who possesses the most comprehensive and the
most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-
sensitive military intelligence data. In fine, the presidential role in
foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of
foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally
undesirable consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same perspective and
understanding, knowing full well the constitutional and legal repercussions of any
judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military
bases, troops or facilities, except by way of a treaty concurred in by the Senate
- a clear limitation on the President's dual role as defender of the State and as
sole authority in foreign relations.
Despite the President's roles as defender of the State and sole authority in foreign
relations, the 1987 Constitution expressly limits his ability in instances when it
involves the entry of foreign military bases, troops or facilities. The initial limitation is
found in Section 21 of the provisions on the Executive Department: "No treaty or
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate." The specific limitation is given by
Section 25 of the Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of
the Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add
to the basic requirements of a treaty under Section 21 of Article VII. This means that
both provisions must be read as additional limitations to the President's overarching
executive function in matters of defense and foreign relations.
3. The President, however, may enter into an executive agreement on foreign
military bases, troops, or facilities, if (a) it is not the instrument that allows the
presence of foreign military bases, troops, or facilities; or (b) it merely aims to
implement an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of
the Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form of a
"treaty" duly concurred in by the Senate. They stress that the Constitution is
unambigous in mandating the transmission to the Senate of all international
agreements concluded after the expiration of the MBA in 1991 - agreements that
concern the presence of foreign military bases, troops, or facilities in the country.
Accordingly, petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its
members - with 1 against and 2 abstaining - says in SR 105171 that EDCA must be
submitted to the Senate in the form of a treaty for concurrence by at least two-thirds
of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII,
Section 25) to support its position. Compared with the lone constitutional provision
that the Office of the Solicitor General (OSG) cites, which is Article XVIII, Section 4(2),
which includes the constitutionality of "executive agreement(s)" among the cases
subject to the Supreme Court's power of judicial review, the Constitution clearly
requires submission of EDCA to the Senate. Two specific provisions versus one
general provision means that the specific provisions prevail. The term "executive
agreement" is "a term wandering alone in the Constitution, bereft of provenance and
an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even
added that the MDT, which the Executive claims to be partly implemented through
EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105, as
well as with the comment on interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's
pronouncements on the powers of the President. When the Court validated the
concept of "executive agreement," it did so with full knowledge of the Senate's role in
concurring in treaties. It was aware of the problematique of distinguishing when an
international agreement needed Senate concurrence for validity, and when it did not;
and the Court continued to validate the existence of "executive agreements" even
after the 1987 Constitution.172 This follows a long line of similar decisions upholding
the power of the President to enter into an executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that as late as
2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads
to the conclusion that it applies only to a proposed agreement between our
government and a foreign government, whereby military bases, troops, or facilities of
such foreign government would be "allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This wording
signifies that the President is not authorized by law to allow foreign military bases,
troops, or facilities to enter the Philippines, except under a treaty concurred in by the
Senate. Hence, the constitutionally restricted authority pertains to the entry of the
bases, troops, or facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of paramount consideration is the
plain meaning of the language expressed in the Constitution, or the verba
legis rule.175 It is presumed that the provisions have been carefully crafted in order to
express the objective it seeks to attain.176 It is incumbent upon the Court to refrain
from going beyond the plain meaning of the words used in the Constitution. It is
presumed that the framers and the people meant what they said when they said it,
and that this understanding was reflected in the Constitution and understood by the
people in the way it was meant to be understood when the fundamental law was
ordained and promulgated.177 As this Court has often said:
We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential for the
rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus, these are
the cases where the need for construction is reduced to a
minimum.178(Emphases supplied)
It is only in those instances in which the constitutional provision is unclear,
ambiguous, or silent that further construction must be done to elicit its
meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180 we reiterated
this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The
proper interpretation therefore depends more on how it was understood by the
people adopting it than in the framers' understanding thereof. (Emphases
supplied)
The effect of this statement is surprisingly profound, for, if taken literally, the phrase
"shall not be allowed in the Philippines" plainly refers to the entry of bases, troops, or
facilities in the country. The Oxford English Dictionary defines the word "allow" as a
transitive verb that means "to permit, enable"; "to give consent to the occurrence of or
relax restraint on (an action, event, or activity)"; "to consent to the presence or
attendance of (a person)"; and, when with an adverbial of place, "to permit (a person
or animal) to go, come, or be in, out, near, etc."181 Black's Law Dictionary defines the
term as one that means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition used to indicate
"place or position in space or anything having material extension: Within the limits or
bounds of, within (any place or thing)."183 That something is the Philippines, which is
the noun that follows.
It is evident that the constitutional restriction refers solely to the initial entry of the
foreign military bases, troops, or facilities. Once entry is authorized, the subsequent
acts are thereafter subject only to the limitations provided by the rest of the
Constitution and Philippine law, and not to the Section 25 requirement of validity
through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This Court stated
in Lim v. Executive Secretary:
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.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It
is only logical to assume that "Balikatan 02-1," a "mutual anti- terrorism advising,
assisting and training exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related activities -as
opposed to combat itself-such as the one subject of the instant petition, are indeed
authorized.184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern the conduct of
foreign military troops in the Philippines,185 readily implying the legality of their initial
entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive agreement,
since it merely involves "adjustments in detail" in the implementation of the MDT and
the VFA.186 It points out that there are existing treaties between the Philippines and
the U.S. that have already been concurred in by the Philippine Senate and have
thereby met the requirements of the Constitution under Section 25. Because of the
status of these prior agreements, respondent emphasizes that EDCA need not be
transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with
the ponencia's application of verba legis construction to the words of Article XVIII,
Section 25.187 It claims that the provision is "neither plain, nor that simple."188 To
buttress its disagreement, the dissent states that the provision refers to a historical
incident, which is the expiration of the 1947 MBA.189 Accordingly, this position requires
questioning the circumstances that led to the historical event, and the meaning of the
terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not
inapplicable just because a provision has a specific historical context. In fact, every
provision of the Constitution has a specific historical context. The purpose of
constitutional and statutory construction is to set tiers of interpretation to guide the
Court as to how a particular provision functions. Verba legis is of paramount
consideration, but it is not the only consideration. As this Court has often said:
We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential for the rule
of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus, these are
the cases where the need for construction is reduced to a
minimum.190(Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of terms. In this case,
the phrase being construed is "shall not be allowed in the Philippines" and not the
preceding one referring to "the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities." It is explicit in the wording of the
provision itself that any interpretation goes beyond the text itself and into the
discussion of the framers, the context of the Constitutional Commission's time of
drafting, and the history of the 1947 MBA. Without reference to these factors, a
reader would not understand those terms. However, for the phrase "shall not be
allowed in the Philippines," there is no need for such reference. The law is clear. No
less than the Senate understood this when it ratified the VFA.
4. The President may generally enter into executive agreements subject to
limitations defined by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.
We discuss in this section why the President can enter into executive agreements.
It would be helpful to put into context the contested language found in Article XVIII,
Section 25. Its more exacting requirement was introduced because of the previous
experience of the country when its representatives felt compelled to consent to the
old MBA.191 They felt constrained to agree to the MBA in fulfilment of one of the major
conditions for the country to gain independence from the U.S.192 As a result of that
experience, a second layer of consent for agreements that allow military bases,
troops and facilities in the country is now articulated in Article XVIII of our present
Constitution.
This second layer of consent, however, cannot be interpreted in such a way that we
completely ignore the intent of our constitutional framers when they provided for that
additional layer, nor the vigorous statements of this Court that affirm the continued
existence of that class of international agreements called "executive agreements."
The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction.193 That power has
been alluded to in our present and past Constitutions,194 in various statutes,195 in
Supreme Court decisions,196 and during the deliberations of the Constitutional
Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the
country.199
As the sole organ of our foreign relations200 and the constitutionally assigned chief
architect of our foreign policy,201the President is vested with the exclusive power to
conduct and manage the country's interface with other states and governments.
Being the principal representative of the Philippines, the Chief Executive speaks and
listens for the nation; initiates, maintains, and develops diplomatic relations with other
states and governments; negotiates and enters into international agreements;
promotes trade, investments, tourism and other economic relations; and settles
international disputes with other states.202
As previously discussed, this constitutional mandate emanates from the inherent
power of the President to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require further
Senate concurrence. The existence of this presidential power203 is so well-entrenched
that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed below, executive agreements are among those official
governmental acts that can be the subject of this Court's power of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and orders of
lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are
defined as "international agreements embodying adjustments of detail carrying out
well-established national policies and traditions and those involving arrangements of
a more or less temporary nature."204 In Bayan Muna v. Romulo, this Court further
clarified that executive agreements can cover a wide array of subjects that have
various scopes and purposes.205 They are no longer limited to the traditional subjects
that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:
The categorization of subject matters that may be covered by international
agreementsmentioned in Eastern Sea Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law wider, as to include
such subjects as human rights, the environment, and the sea. In fact, in the US alone,
the executive agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety,
among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international
agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the large variety of
executive agreements as such concluded from time to time. Hundreds of
executive agreements, other than those entered into under the trade-agreement act,
have been negotiated with foreign governments. . . . They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the admission
of civil air craft, custom matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and copyrights, etc ....
(Emphases Supplied)
One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence.206 This distinctive feature
was recognized as early as in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with the approval of
two-thirds of the Senate. Executive agreements become binding through
executive action without the need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has
never been seriously questioned by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the framers
specifically deliberated on whether the general term "international agreement"
included executive agreements, and whether it was necessary to include an express
proviso that would exclude executive agreements from the requirement of Senate
concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling
in Eastern Sea Trading, the Constitutional Commission members ultimately decided
that the term "international agreements" as contemplated in Section 21, Article VII,
does not include executive agreements, and that a proviso is no longer needed. Their
discussion is reproduced below:207
MS. AQUINO: Madam President, first I would like a clarification from the Committee.
We have retained the words "international agreement" which I think is the correct
judgment on the matter because an international agreement is different from a treaty.
A treaty is a contract between parties which is in the nature of international agreement
and also a municipal law in the sense that the people are bound. So there is a
conceptual difference. However, I would like to be clarified if the international
agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these international
negotiations stipulate the conditions which are necessary for the agreement or
whatever it may be to become valid or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend on the nature
of the executive agreement? According to common usage, there are two types of
executive agreement: one is purely proceeding from an executive act which
affects external relations independent of the legislative and the other is
an executive act in pursuance of legislative authorization. The first kind might
take the form of just conventions or exchanges of notes or protocol while the
other, which would be pursuant to the legislative authorization, may be in
the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to implement a
treaty already enforced or to determine the details for the implementation of the
treaty. We are speaking of executive agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover the first
kind of executive agreement which is just protocol or an exchange of notes and this
would be in the nature of reinforcement of claims of a citizen against a country, for
example.
MR. CONCEPCION: The Commissioner is free to require ratification for validity
insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide, unless the
Committee explains to us otherwise, an explicit proviso which would except
executive agreements from the requirement of concurrence of two-thirds of the
Members of the Senate. Unless I am enlightened by the Committee I propose that
tentatively, the sentence should read. "No treaty or international agreement EXCEPT
EXECUTIVE AGREEMENTS shall be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in
Eastern Sea Trading] might help clarify this:
The right of the executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have entered into executive
agreements covering such subjects as commercial and consular relations, most
favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of this has never
been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by
the executive of various countries under the Act of Congress of March 3, 1881 (21
Stat. 502) . . . International agreements involving political issues or changes of
national policy and those involving international agreements of a permanent
character usually take the form of treaties. But international agreements
embodying adjustments of detail, carrying out well established national policies
and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international
agreements which need concurrence by at least two-thirds are those which are
permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive
agreements essentially but which are proceeding from the authorization of Congress.
If that is our understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need
subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of
"executive agreements" and that would make unnecessary any explicit proviso
on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements"
because I heard that these executive agreements must rely on treaties. In other
words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive
agreements being the implementation of treaties, details of which do not affect the
sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam President?
Would 99 years be considered permanent? What would be the measure of
permanency? I do not conceive of a treaty that is going to be forever, so there must
be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of
agreement should be included in a provision of the Constitution requiring the
concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I
am not clear. If the executive agreement partakes of the nature of a treaty, then it
should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within
the power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words
"international agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it,
therefore, that as far as the Committee is concerned, the term "international
agreements" does not include the term "executive agreements" as read by the
Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section 21 was
again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases,
both decided under the aegis of the present Constitution, quoted Eastern Sea
Trading in reiterating that executive agreements are valid and binding even without
the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence
because of the legal mandate with which they are concluded. As culled from the
afore-quoted deliberations of the Constitutional Commission, past Supreme Court
Decisions, and works of noted scholars,208 executive agreements merely involve
arrangements on the implementation of existing policies, rules, laws, or agreements.
They are concluded (1) to adjust the details of a treaty;209 (2) pursuant to or upon
confirmation by an act of the Legislature;210 or (3) in the exercise of the President's
independent powers under the Constitution.211 The raison d'etre of executive
agreements hinges on prior constitutional or legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in
international agreements. International practice has accepted the use of various
forms and designations of international agreements, ranging from the traditional
notion of a treaty - which connotes a formal, solemn instrument - to engagements
concluded in modem, simplified forms that no longer necessitate ratification.212 An
international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed minute, memorandum of
agreement, modus vivendi, or some other form.213 Consequently, under international
law, the distinction between a treaty and an international agreement or even an
executive agreement is irrelevant for purposes of determining international rights and
obligations.
However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation
in form, or that the constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in
the domestic setting.
First, executive agreements must remain traceable to an express or implied
authorization under the Constitution, statutes, or treaties. The absence of these
precedents puts the validity and effectivity of executive agreements under serious
question for the main function of the Executive is to enforce the Constitution and the
laws enacted by the Legislature, not to defeat or interfere in the performance of these
rules.214 In turn, executive agreements cannot create new international obligations
that are not expressly allowed or reasonably implied in the law they purport to
implement.
Second, treaties are, by their very nature, considered superior to executive
agreements. Treaties are products of the acts of the Executive and the
Senate215 unlike executive agreements, which are solely executive actions.216Because
of legislative participation through the Senate, a treaty is regarded as being on the
same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty
takes precedence over one that is prior.218 An executive agreement is treated
differently. Executive agreements that are inconsistent with either a law or a treaty are
considered ineffective.219 Both types of international agreement are nevertheless
subject to the supremacy of the Constitution.220
This rule does not imply, though, that the President is given carte blanche to exercise
this discretion. Although the Chief Executive wields the exclusive authority to conduct
our foreign relations, this power must still be exercised within the context and the
parameters set by the Constitution, as well as by existing domestic and international
laws. There are constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as those that involve the
following:
a. The policy of freedom from nuclear weapons within Philippine territory221
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, which must be pursuant to the authority
granted by Congress222
c. The grant of any tax exemption, which must be pursuant to a law
concurred in by a majority of all the Members of Congress223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign
loans that must be previously concurred in by the Monetary Board224
e. The authorization of the presence of foreign military bases, troops, or
facilities in the country must be in the form of a treaty duly concurred in by
the Senate.225
f. For agreements that do not fall under paragraph 5, the concurrence of the
Senate is required, should the form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an executive
agreement or a treaty.
No court can tell the President to desist from choosing an executive agreement over a
treaty to embody an international agreement, unless the case falls squarely within
Article VIII, Section 25.
As can be gleaned from the debates among the members of the Constitutional
Commission, they were aware that legally binding international agreements were
being entered into by countries in forms other than a treaty. At the same time, it is
clear that they were also keen to preserve the concept of "executive agreements" and
the right of the President to enter into such agreements.
What we can glean from the discussions of the Constitutional Commissioners is that
they understood the following realities:
1. Treaties, international agreements, and executive agreements are all
constitutional manifestations of the conduct of foreign affairs with their
distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other
States-parties, which are in the nature of international agreements,
and also of municipal laws in the sense of their binding nature.226
b. International agreements are similar instruments, the provisions
of which may require the ratification of a designated number of
parties thereto. These agreements involving political issues or
changes in national policy, as well as those involving international
agreements of a permanent character, usually take the form of
treaties. They may also include commercial agreements, which are
executive agreements essentially, but which proceed from previous
authorization by Congress, thus dispensing with the requirement of
concurrence by the Senate.227
c. Executive agreements are generally intended to implement a
treaty already enforced or to determine the details of the
implementation thereof that do not affect the sovereignty of the
State.228
2. Treaties and international agreements that cannot be mere executive
agreements must, by constitutional decree, be concurred in by at least two-
thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign
military troops, bases, or facilities - is particularly restricted. The
requirements are that it be in the form of a treaty concurred in by the Senate;
that when Congress so requires, it be ratified by a majority of the votes cast
by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of
international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. Non-
Surrender Agreement in the form of an executive agreement, instead of a treaty, and
in ratifying the agreement without Senate concurrence. The Court en banc discussed
this intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate. x x x
x. Pressing its point, petitioner submits that the subject of the Agreement does not fall
under any of the subject-categories that xx x may be covered by an executive
agreement, such as commercial/consular relations, most-favored nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There are no
hard and fast rules on the propriety of entering, on a given subject, into a treaty
or an executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties' intent and
desire to craft an international agreement in the form they so wish to further
their respective interests. Verily, the matter of form takes a back seat when it
comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor
under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a
treaty is required, the Constitution does not classify any subject, like that
involving political issues, to be in the form of, and ratified as, a treaty. What the
Constitution merely prescribes is that treaties need the concurrence of the Senate by
a vote defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the external
affairs of the nation is, as Bayan would put it, "executive altogether." The right of the
President to enter into or ratify binding executive agreements has been
confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the
Constitution. At the end of the day, the President - by ratifying, thru her deputies,
the non-surrender agreement - did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger measure
of authority and wider discretion, subject only to the least amount of checks and
restrictions under the Constitution.229 The rationale behind this power and discretion
was recognized by the Court in Vinuya v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of
International Agreements and its Ratification, thus, correctly reflected the inherent
powers of the President when it stated that the DFA "shall determine whether an
agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into
whether an international agreement should be in the form of a treaty or an executive
agreement, save in cases in which the Constitution or a statute requires otherwise.
Rather, in view of the vast constitutional powers and prerogatives granted to the
President in the field of foreign affairs, the task of the Court is to determine whether
the international agreement is consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it
merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a law or a
treaty that already deals with the presence of foreign military forces is not at all
unusual in this jurisdiction. In fact, the Court has already implicitly acknowledged this
practice in Lim v. Executive Secretary.231 In that case, the Court was asked to
scrutinize the constitutionality of the Terms of Reference of the Balikatan 02-1 joint
military exercises, which sought to implement the VFA. Concluded in the form of an
executive agreement, the Terms of Reference detailed the coverage of the term
"activities" mentioned in the treaty and settled the matters pertaining to the
construction of temporary structures for the U.S. troops during the activities; the
duration and location of the exercises; the number of participants; and the extent of
and limitations on the activities of the U.S. forces. The Court upheld the Terms of
Reference as being consistent with the VFA. It no longer took issue with the fact that
the Balikatan Terms of Reference was not in the form of a treaty concurred in by the
Senate, even if it dealt with the regulation of the activities of foreign military forces on
Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive
agreement in an attempt to adjust the details of a provision of the VFA. The
Philippines and the U.S. entered into the Romulo-Kenney Agreement, which
undertook to clarify the detention of a U.S. Armed Forces member, whose case was
pending appeal after his conviction by a trial court for the crime of rape. In testing the
validity of the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of the treaty it
purports to implement. It was eventually ruled that the Romulo-Kenney Agreement
was "not in accord" with the VFA, since the former was squarely inconsistent with a
provision in the treaty requiring that the detention be "by Philippine authorities."
Consequently, the Court ordered the Secretary of Foreign Affairs to comply with the
VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided
in Art. V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following pronouncements to
guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent
requirements that must be fulfilled by the international agreement allowing
the presence of foreign military bases, troops, or facilities in the Philippines:
(a) the agreement must be in the form of a treaty, and (b) it must be duly
concurred in by the Senate.
2. If the agreement is not covered by the above situation, then the President
may choose the form of the agreement (i.e., either an executive agreement
or a treaty), provided that the agreement dealing with foreign military bases,
troops, or facilities is not the principal agreement that first allows their entry
or presence in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations,
and standards set by the law and/or treaty that the former purports to
implement; and must not unduly expand the international obligation
expressly mentioned or necessarily implied in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well
as with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive
agreement, respondents carry the burden of proving that it is a mere implementation
of existing laws and treaties concurred in by the Senate. EDCA must thus be carefully
dissected to ascertain if it remains within the legal parameters of a valid executive
agreement.
7. EDCA is consistent with the content, purpose, and framework of the MDT and
the VFA
The starting point of our analysis is the rule that "an executive agreement xx x may
not be used to amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v.
Romulo, the Court approached the question of the validity of executive agreements
by comparing them with the general framework and the specific provisions of the
treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized by
studying "the framework of the treaty antecedents to which the Philippines bound
itself,"235 i.e., the MDT and the VFA. The Court proceeded to examine the extent of
the term "activities" as contemplated in Articles 1236 and II237 of the VFA. It later on
found that the term "activities" was deliberately left undefined and ambiguous in order
to permit "a wide scope of undertakings subject only to the approval of the Philippine
government"238 and thereby allow the parties "a certain leeway in negotiation."239 The
Court eventually ruled that the Terms of Reference fell within the sanctioned or
allowable activities, especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the provisions
of the VFA on custody and detention to ascertain the validity of the Romulo-Kenney
Agreement.240 It eventually found that the two international agreements were not in
accord, since the Romulo-Kenney Agreement had stipulated that U.S. military
personnel shall be detained at the U.S. Embassy Compound and guarded by U.S.
military personnel, instead of by Philippine authorities. According to the Court, the
parties "recognized the difference between custody during the trial and detention after
conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military
personnel resides with U.S. military authorities during trial. Once there is a finding of
guilt, Article V(l0) requires that the confinement or detention be "by Philippine
authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially
modifies or amends the VFA"242and follows with an enumeration of the differences
between EDCA and the VFA. While these arguments will be rebutted more fully
further on, an initial answer can already be given to each of the concerns raised by
his dissent.
The first difference emphasized is that EDCA does not only regulate visits as the VFA
does, but allows temporary stationing on a rotational basis of U.S. military personnel
and their contractors in physical locations with permanent facilities and pre-positioned
military materiel.
This argument does not take into account that these permanent facilities, while built
by U.S. forces, are to be owned by the Philippines once constructed.243 Even the VFA
allowed construction for the benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of
military materiel, which can include various types of warships, fighter planes,
bombers, and vessels, as well as land and amphibious vehicles and their
corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and
aircraft to be brought into the country. Articles VII and VIII of the VFA contemplates
that U.S. equipment, materials, supplies, and other property are imported into or
acquired in the Philippines by or on behalf of the U.S. Armed Forces; as are vehicles,
vessels, and aircraft operated by or for U.S. forces in connection with activities under
the VFA. These provisions likewise provide for the waiver of the specific duties, taxes,
charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA
contemplates the entry of troops for training exercises, whereas EDCA allows the use
of territory for launching military and paramilitary operations conducted in other
states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA
was intended for non-combat activides only, whereas the entry and activities of U.S.
forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA.246
This Court's jurisprudence however established in no uncertain terms that combat-
related activities, as opposed to actual combat, were allowed under the MDT and
VFA, viz:
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.247
Hence, even if EDCA was borne of military necessity, it cannot be said to have
strayed from the intent of the VFA since EDCA's combat-related components are
allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are.
Both the VFA and EDCA deal with the presence of U.S. forces within the Philippines,
but make no mention of being platforms for activity beyond Philippine territory. While it
may be that, as applied, military operations under either the VFA or EDCA would be
carried out in the future the scope of judicial review does not cover potential breaches
of discretion but only actual occurrences or blatantly illegal provisions. Hence, we
cannot invalidate EDCA on the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not
contemplated in the VFA or the MDT: Agreed Locations, Contractors, Pre-positioning,
and Operational Control.248
As previously mentioned, these points shall be addressed fully and individually in the
latter analysis of EDCA's provisions. However, it must already be clarified that the
terms and details used by an implementing agreement need not be found in the
mother treaty. They must be sourced from the authority derived from the treaty, but
are not necessarily expressed word-for-word in the mother treaty. This concern shall
be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not
have provisions that may be construed as a restriction on or modification of
obligations found in existing statues, including the jurisdiction of courts, local
autonomy, and taxation. Implied in this argument is that EDCA contains such
restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both
the VFA and EDCA ensure Philippine jurisdiction in all instances contemplated by
both agreements, with the exception of those outlined by the VFA in Articles III-VI. In
the VFA, taxes are clearly waived whereas in EDCA, taxes are assumed by the
government as will be discussed later on. This fact does not, therefore, produce a
diminution of jurisdiction on the part of the Philippines, but rather a recognition of
sovereignty and the rights that attend it, some of which may be waived as in the
cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with those
of the MDT and the VFA, which are the two treaties from which EDCA allegedly draws
its validity.
"Authorized presence" under the VFA versus "authorized activities" under
EDCA: (1) U.S. personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT and the
VFA. It explains that EDCA articulates the principle of defensive
preparation embodied in Article II of the MDT; and seeks to enhance the defensive,
strategic, and technological capabilities of both parties pursuant to the objective of the
treaty to strengthen those capabilities to prevent or resist a possible armed attack.
Respondent also points out that EDCA simply implements Article I of the VFA, which
already allows the entry of U.S. troops and personnel into the country. Respondent
stresses this Court's recognition in Lim v. Executive Secretary that U.S. troops and
personnel are authorized to conduct activities that promote the goal of maintaining
and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely implement the
MDT. According to them, the treaty does not specifically authorize the entry of U.S.
troops in the country in order to maintain and develop the individual and collective
capacities of both the Philippines and the U.S. to resist an armed attack. They
emphasize that the treaty was concluded at a time when there was as yet no specific
constitutional prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They
assert that the agreement covers only short-term or temporary visits of U.S. troops
"from time to time" for the specific purpose of combined military exercises with their
Filipino counterparts. They stress that, in contrast, U.S. troops are allowed under
EDCA to perform activities beyond combined military exercises, such as those
enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of
permanence in the presence of U.S. troops in the country, since the effectivity of
EDCA is continuous until terminated. They proceed to argue that while troops have a
"rotational" presence, this scheme in fact fosters their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory is already
allowed under the VFA
We shall first deal with the recognition under EDCA of the presence in the country of
three distinct classes of individuals who will be conducting different types of activities
within the Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel;
and (3) U.S. contractors. The agreement refers to them as follows:
"United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities approved
by the Philippines, as those terms are defined in the VFA.252
"United States forces" means the entity comprising United States personnel and
all property, equipment, and materiel of the United States Armed Forces present in
the territory of the Philippines.253
"United States contractors" means companies and firms, and their employees,
under contract or subcontract to or on behalf of the United States Department of
Defense. United States contractors are not included as part of the definition of United
States personnel in this Agreement, including within the context of the VFA.254
United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of the
Philippines without restriction as to choice of contractor, supplier, or person who
provides such materiel, supplies, equipment, or services. Such contracts shall be
solicited, awarded, and administered in accordance with the laws and regulations of
the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement does
not deal with the entry into the country of U.S. personnel and contractors per
se. While Articles I(l)(b)256 and II(4)257 speak of "the right to access and use" the
Agreed Locations, their wordings indicate the presumption that these groups have
already been allowed entry into Philippine territory, for which, unlike the VFA, EDCA
has no specific provision. Instead, Article II of the latter simply alludes to the VFA in
describing U.S. personnel, a term defined under Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government. Within this definition:
1. The term "military personnel" refers to military members of
the United States Army, Navy, Marine Corps, Air Force, and
Coast Guard.
2. The term "civilian personnel" refers to individuals who are
neither nationals of nor ordinarily resident in the
Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed
forces, such as employees of the American Red Cross and
the United Services Organization.258
Article II of EDCA must then be read with Article III of the VFA, which provides for the
entry accommodations to be accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of
United States personnel and their departure from the Philippines in
connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and
visa regulations upon enteringand departing the Philippines.
3. The following documents only, which shall be required in respect of United
States military personnel who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt from visa
requirements but shall present, upon demand, valid passports upon
entry and departure of the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military
and civilian personnel to be "temporarily in the Philippines," so long as their presence
is "in connection with activities approved by the Philippine Government." The
Philippines, through Article III, even guarantees that it shall facilitate the admission of
U.S. personnel into the country and grant exemptions from passport and visa
regulations. The VFA does not even limit their temporary presence to specific
locations.
Based on the above provisions, the admission and presence of U.S. military and
civilian personnel in Philippine territory are already allowed under the VFA, the
treaty supposedly being implemented by EDCA. What EDCA has effectively done,
in fact, is merely provide the mechanism to identify the locations in which U.S.
personnel may perform allowed activities pursuant to the VFA. As the implementing
agreement, it regulates and limits the presence of U.S. personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors into
Philippine territory; their entry must be sourced from extraneous Philippine statutes
and regulations for the admission of alien employees or business persons.
Of the three aforementioned classes of individuals who will be conducting certain
activities within the Agreed Locations, we note that only U.S. contractors are not
explicitly mentioned in the VFA. This does not mean, though, that the recognition of
their presence under EDCA is ipso facto an amendment of the treaty, and that there
must be Senate concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely grant them the right of access to, and
the authority to conduct certain activities within the Agreed Locations. Since Article
II(3) of EDCA specifically leaves out U.S. contractors from the coverage of the VFA,
they shall not be granted the same entry accommodations and privileges as those
enjoyed by U.S. military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the Philippines to
admit U.S. contractors into the country.259 We emphasize that the admission of aliens
into Philippine territory is "a matter of pure permission and simple tolerance which
creates no obligation on the part of the government to permit them to stay."260 Unlike
U.S. personnel who are accorded entry accommodations, U.S. contractors are
subject to Philippine immigration laws.261The latter must comply with our visa and
passport regulations262 and prove that they are not subject to exclusion under any
provision of Philippine immigration laws.263 The President may also deny them entry
pursuant to his absolute and unqualified power to prohibit or prevent the admission of
aliens whose presence in the country would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel or deport
U.S. contractors265 as may be necessitated by national security, public safety, public
health, public morals, and national interest.266 They may also be deported if they are
found to be illegal or undesirable aliens pursuant to the Philippine Immigration
Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of the VFA requires a
request for removal from the Philippine government before a member of the U.S.
personnel may be "dispos[ed] xx x outside of the Philippines."
c. Authorized activities of U.S. military and civilian personnel within Philippine territory
are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and the VFA that
pertain to the activities in which U.S. military and civilian personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties separately
and jointly byself-help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and
whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external armed
attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government. Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the Republic of
the Philippines and to abstain from any activity inconsistent with the spirit of
this agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to ensure
that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges. x x
x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement
of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as
necessary. x x x (Emphases Supplied)
Manifest in these provisions is the abundance of references to the creation of further
"implementing arrangements" including the identification of "activities [to be] approved
by the Philippine Government." To determine the parameters of these implementing
arrangements and activities, we referred to the content, purpose, and framework of
the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries shall
engage in joint activities, so that they can maintain and develop their defense
capabilities. The wording itself evidently invites a reasonable construction that
the joint activities shall involve joint military trainings, maneuvers, and exercises. Both
the interpretation269 and the subsequent practice270 of the parties show that the MDT
independently allows joint military exercises in the country. Lim v. Executive
Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are
activities that seek to enhance and develop the strategic and technological
capabilities of the parties to resist an armed attack, "fall squarely under the provisions
of the RP-US MDT."273 In Lim, the Court especially noted that the Philippines and the
U.S. continued to conduct joint military exercises even after the expiration of the MBA
and even before the conclusion of the VFA.274 These activities presumably related to
the Status of Forces Agreement, in which the parties agreed on the status to be
accorded to U.S. military and civilian personnel while conducting activities in the
Philippines in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT that these joint activities
may be conducted on Philippine or on U.S. soil. The article expressly provides that
the term armed attack includes "an armed attack on the metropolitan territory of
either of the Parties, or on the island territories under its jurisdiction in the Pacific
or on its armed forces, public vessels or aircraft in the Pacific." Surely, in
maintaining and developing our defense capabilities, an assessment or training will
need to be performed, separately and jointly by self-help and mutual aid, in the
territories of the contracting parties. It is reasonable to conclude that the assessment
of defense capabilities would entail understanding the terrain, wind flow patterns, and
other environmental factors unique to the Philippines.
It would also be reasonable to conclude that a simulation of how to respond to attacks
in vulnerable areas would be part of the training of the parties to maintain and
develop their capacity to resist an actual armed attack and to test and validate the
defense plan of the Philippines. It is likewise reasonable to imagine that part of the
training would involve an analysis of the effect of the weapons that may be used and
how to be prepared for the eventuality. This Court recognizes that all of this may
require training in the area where an armed attack might be directed at the Philippine
territory.
The provisions of the MDT must then be read in conjunction with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian personnel
in the Philippines is "in connection with activities approved by the Philippine
Government." While the treaty does not expressly enumerate or detail the nature of
activities of U.S. troops in the country, its Preamble makes explicit references to the
reaffirmation of the obligations of both countries under the MDT. These obligations
include the strengthening of international and regional security in the Pacific area and
the promotion of common security interests.
The Court has already settled in Lim v. Executive Secretary that the phrase "activities
approved by the Philippine Government" under Article I of the VFA was intended to be
ambiguous in order to afford the parties flexibility to adjust the details of the purpose
of the visit of U.S. personnel.276 In ruling that the Terms of Reference for
the Balikatan Exercises in 2002 fell within the context of the treaty, this Court
explained:
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.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It
is only logical to assume that "Balikatan 02-1," a "mutual anti-terrorism
advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion
that combat-related activities - as opposed to combat itself- such as the one subject
of the instant petition, are indeed authorized. (Emphases Supplied)
The joint report of the Senate committees on foreign relations and on national
defense and security further explains the wide range and variety of activities
contemplated in the VFA, and how these activities shall be identified:277
These joint exercises envisioned in the VFA are not limited to combat-related
activities; they have a wide range and variety. They include exercises that will
reinforce the AFP's ability to acquire new techniques of patrol and surveillance to
protect the country's maritime resources; sea-search and rescue operations to
assist ships in distress; and disaster-relief operations to aid the civilian victims of
natural calamities, such as earthquakes, typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in aircraft
maintenance and equipment repair; civic-action projects; and consultations and
meetings of the Philippine-U.S. Mutual Defense Board. It is at the level of the
Mutual Defense Board-which is headed jointly by the Chief of Staff of the AFP and
the Commander in Chief of the U.S. Pacific Command-that the VFA exercises are
planned. Final approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what activities will
be conductedbetween the armed forces of the U.S. and the Philippines. The VFA
regulates and provides the legal framework for the presence, conduct and legal
status of U.S. personnel while they are in the country for visits, joint exercises and
other related activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report of the
Senate committees on foreign relations and on national defense and security,
and the ruling of this Court in Lim is that the "activities" referred to in the treaty
are meant to be specified and identified infurther agreements. EDCA is one
such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of
U.S. personnel referred to in the VFA. EDCA allows U.S. military and civilian
personnel to perform "activities approved by the Philippines, as those terms are
defined in the VFA"278 and clarifies that these activities include those conducted within
the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities; humanitarian
assistance and disaster relief activities; and such other activities as may be agreed
upon by the Parties279
2. Training; transit; support and related activities; refueling of aircraft; bunkering of
vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies,
and materiel; deployment of forces and materiel; and such other activities as the
Parties may agree280
3. Exercise of operational control over the Agreed Locations for construction activities
and other types of activity, including alterations and improvements thereof281
4. Exercise of all rights and authorities within the Agreed Locations that are necessary
for their operational control or defense, including the adoption of apfropriate
measures to protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities 283
6. Operation of their own telecommunication systems, including the utilization of such
means and services as are required to ensure the full ability to operate
telecommunication systems, as well as the use of the necessary radio spectrum
allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities is to maintain
and develop, jointly and by mutual aid, the individual and collective capacities of both
countries to resist an armed attack. It further states that the activities are in
furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the
U.S. to perform the following: (a) participate in training exercises; (b) retain command
over their forces; (c) establish temporary structures in the country; (d) share in the
use of their respective resources, equipment and other assets; and (e) exercise their
right to self-defense. We quote the relevant portion of the Terms and Conditions as
follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing
may be set up for use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under
the authority of the Chief of Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and US Unit Commanders
will retain command over their respective forces under the overall authority of
the Exercise Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces.
The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be
conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be
for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to their
right of self-defense.
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 trainingof 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
xxxx
a. RP and US participating forces may share, in accordance with their respective
laws and regulations, in the use of their resources, equipment and other assets.
They will use their respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the MDT and
the VFA, we find that EDCA has remained within the parameters set in these two
treaties. Just like the Terms of Reference mentioned in Lim, mere adjustments in
detail to implement the MDT and the VFA can be in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer
consistent with the temporary nature of the visits as contemplated in the VFA. They
point out that Article XII(4) of EDCA has an initial term of 10 years, a term
automatically renewed unless the Philippines or the U.S. terminates the agreement.
According to petitioners, such length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her
Concurring and Dissenting Opinion that the VFA contemplated mere temporary visits
from U.S. forces, whereas EDCA allows an unlimited period for U.S. forces to stay in
the Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting itself to
10 years of effectivity. Although this term is automatically renewed, the process for
terminating the agreement is unilateral and the right to do so automatically accrues at
the end of the 10 year period. Clearly, this method does not create a permanent
obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by
chance that the VFA does not include a maximum time limit with respect to the
presence of U.S. personnel in the country. We construe this lack of specificity as a
deliberate effort on the part of the Philippine and the U.S. governments to leave out
this aspect and reserve it for the "adjustment in detail" stage of the implementation of
the treaty. We interpret the subsequent, unconditional concurrence of the Senate in
the entire text of the VFA as an implicit grant to the President of a margin of
appreciation in determining the duration of the "temporary" presence of U.S.
personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more
permanent" in nature.289However, this argument has not taken root by virtue of a
simple glance at its provisions on the effectivity period. EDCA does not grant
permanent bases, but rather temporary rotational access to facilities for efficiency. As
Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to
facilities of the Armed Forces of the Philippines – but not permanent bases which are
prohibited under the Philippine Constitution - with the result of reducing response time
should an external threat from a common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of states as
shown in other defense cooperation agreements. For example, Article XIV(l) of the
U.S.-Romania defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in
accordance with the internal laws of each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may be
terminated by written notification by either Party and in that event it terminates 2
years after the receipt of the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A
and B, shall become effective on the date of the last signature affixed below and shall
remain in force until terminated by the Parties, provided that it may be terminated
by either Party upon 180 days written notice of its intention to do so to the other Party.
(emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture
Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall
continue in force, but may be terminated by either Party at any time upon one year's
written notice to the other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less
than half of that is provided in the latter agreement. This means that EDCA merely
follows the practice of other states in not specifying a non-extendible maximum term.
This practice, however, does not automatically grant a badge of permanency to its
terms. Article XII(4) of EDCA provides very clearly, in fact, that its effectivity is for an
initial term of 10 years, which is far shorter than the terms of effectivity between the
U.S. and other states. It is simply illogical to conclude that the initial, extendible term
of 10 years somehow gives EDCA provisions a permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of the
President who, as Commander-in-Chief of our armed forces, is the principal strategist
of the nation and, as such, duty-bound to defend our national sovereignty and
territorial integrity;291 who, as chief architect of our foreign relations, is the head
policymaker tasked to assess, ensure, and protect our national security and
interests;292 who holds the most comprehensive and most confidential information
about foreign countries293 that may affect how we conduct our external affairs; and
who has unrestricted access to highly classified military intelligence data294 that may
threaten the life of the nation. Thus, if after a geopolitical prognosis of situations
affecting the country, a belief is engendered that a much longer period of military
training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we
acknowledge that the President may not always be able to candidly and openly
discuss the complete situation being faced by the nation. The Chief Executive's hands
must not be unduly tied, especially if the situation calls for crafting programs and
setting timelines for approved activities. These activities may be necessary for
maintaining and developing our capacity to resist an armed attack, ensuring our
national sovereignty and territorial integrity, and securing our national interests. If the
Senate decides that the President is in the best position to define in operational terms
the meaning of temporary in relation to the visits, considered individually or in their
totality, the Court must respect that policy decision. If the Senate feels that there is no
need to set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent of
the "temporary" nature of the visits of U.S. personnel does not suggest that the
duration to which the President may agree is unlimited. Instead, the boundaries of the
meaning of the term temporary in Article I of the treaty must be measured depending
on the purpose of each visit or activity.295 That purpose must be analyzed on a case-
by-case basis depending on the factual circumstances surrounding the conclusion of
the implementing agreement. While the validity of the President's actions will be
judged under less stringent standards, the power of this Court to determine whether
there was grave abuse of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within Philippine territory - who
were legitimately permitted to enter the country independent of EDCA - are subject to
relevant Philippine statutes and regulations and must be consistent with the MDT and
the VFA
Petitioners also raise296 concerns about the U.S. government's purported practice of
hiring private security contractors in other countries. They claim that these contractors
- one of which has already been operating in Mindanao since 2004 - have been
implicated in incidents or scandals in other parts of the globe involving rendition,
torture and other human rights violations. They also assert that these contractors
employ paramilitary forces in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the
following activities:
1. Training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces
and materiel; and such other activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal
of such equipment, supplies and materiel298
3. Carrying out of matters in accordance with, and to the extent permissible
under, U.S. laws, regulations, and policies299
EDCA requires that all activities within Philippine territory be in accordance with
Philippine law. This means that certain privileges denied to aliens are likewise denied
to foreign military contractors. Relevantly, providing security300and carrying, owning,
and possessing firearms301 are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of contractors. In
the 2015 Foreign Investment Negative list,302 the Executive Department has already
identified corporations that have equity restrictions in Philippine jurisdiction. Of note is
No. 5 on the list - private security agencies that cannot have any foreign equity by
virtue of Section 4 of Republic Act No. 5487;303 and No. 15, which regulates contracts
for the construction of defense-related structures based on Commonwealth Act No.
541.
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe
to corporate and civil requirements imposed by the law, depending on the entity's
corporate structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the activities
of U.S. contractors has been clear even to some of the present members of the
Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of
spilling fuel in the waters off Manila Bay.304 The Senate Committee on Foreign
Relations and the Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations by the contractor.305 The
U.S. Navy investigated the contractor and promised stricter guidelines to be imposed
upon its contractors.306 The statement attributed to Commander Ron Steiner of the
public affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are
bound by Philippine laws - is of particular relevance. The statement acknowledges not
just the presence of the contractors, but also the U.S. position that these contractors
are bound by the local laws of their host state. This stance was echoed by other U.S.
Navy representatives.307
This incident simply shows that the Senate was well aware of the presence of U.S.
contractors for the purpose of fulfilling the terms of the VFA. That they are bound by
Philippine law is clear to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted access to the Agreed
Locations, all their activities must be consistent with Philippine laws and regulations
and pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the Court enough
justification to strike down EDCA. In Lim v. Executive Secretary, we have already
explained that we cannot take judicial notice of claims aired in news reports, "not
because of any issue as to their truth, accuracy, or impartiality, but for the simple
reason that facts must be established in accordance with the rules of
evidence."308 What is more, we cannot move one step ahead and speculate that the
alleged illegal activities of these contractors in other countries would take place in the
Philippines with certainty. As can be seen from the above discussion, making sure
that U.S. contractors comply with Philippine laws is a function of law enforcement.
EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the
coverage of the VFA. As visiting aliens, their entry, presence, and activities are
subject to all laws and treaties applicable within the Philippine territory. They may be
refused entry or expelled from the country if they engage in illegal or undesirable
activities. There is nothing that prevents them from being detained in the country or
being subject to the jurisdiction of our courts. Our penal laws,309 labor laws,310 and
immigrations laws311 apply to them and therefore limit their activities here. Until and
unless there is another law or treaty that specifically deals with their entry and
activities, their presence in the country is subject to unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled military
facilities and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military
bases through the "euphemistically" termed "Agreed Locations. "312 Alluding to the
definition of this term in Article II(4) of EDCA, they point out that these locations are
actually military bases, as the definition refers to facilities and areas to which U.S.
military forces have access for a variety of purposes. Petitioners claim that there are
several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are
no longer needed by U.S. forces, indicating that there would be some transfer of
use. Second, Article IV(4) ofEDCA talks about American forces' unimpeded access to
the Agreed Locations for all matters relating to the prepositioning and storage of U.S.
military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S.
forces to use public utilities and to operate their own telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of EDCA by
presenting so-called "badges of exclusivity," despite the presence of contrary
provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the
word "return" is within the context of a lengthy provision. The provision as a whole
reads as follows:
The United States shall return to the Philippines any Agreed Locations, or any portion
thereof, including non-relocatable structures and assemblies constructed, modified, or
improved by the United States, once no longer required by United States forces for
activities under this Agreement. The Parties or the Designated Authorities shall
consult regarding the terms of return of any Agreed Locations, including possible
compensation for improvements or construction.
The context of use is "required by United States forces for activities under this
Agreement." Therefore, the return of an Agreed Location would be within the
parameters of an activity that the Mutual Defense Board (MDB) and the Security
Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to its
return of the Agreed Location would be based on the authority given to it by a joint
body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National Defense and
Department of Foreign Affairs sitting as members."313 The terms shall be negotiated
by both the Philippines and the U.S., or through their Designated Authorities. This
provision, seen as a whole, contradicts petitioners' interpretation of the return as a
"badge of exclusivity." In fact, it shows the cooperation and partnership aspect of
EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a contextual
perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have
"unimpeded access to Agreed Locations for all matters relating to the prepositioning
and storage of defense equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such equipment,
supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the
authority to bring in these equipment, supplies, and materiel through the MDB and
SEB security mechanism. These items are owned by the U.S.,314 are exclusively for
the use of the U.S.315 and, after going through the joint consent mechanisms of the
MDB and the SEB, are within the control of the U.S.316 More importantly, before these
items are considered prepositioned, they must have gone through the process of prior
authorization by the MDB and the SEB and given proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to
the ownership, use, and control of the U.S. over its own equipment, supplies, and
materiel and must have first been allowed by the joint mechanisms in play between
the two states since the time of the MDT and the VFA. It is not the use of the Agreed
Locations that is exclusive per se; it is mere access to items in order to exercise the
rights of ownership granted by virtue of the Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate
their own telecommunications system, it will be met and answered in part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a
one-to-one correspondence with the provisions of the 1947 MBA. They assert that
both agreements (a) allow similar activities within the area; (b) provide for the same
"species of ownership" over facilities; and (c) grant operational control over the entire
area. Finally, they argue320 that EDCA is in fact an implementation of the new defense
policy of the U.S. According to them, this policy was not what was originally intended
either by the MDT or by the VFA.
On these points, the Court is not persuaded. equipment may be found. Below is a comparative table between the old treaty and
EDCA:
The similar activities cited by petitioners321 simply show that under the MBA, the U.S.
had the right to construct, operate, maintain, utilize, occupy, garrison, and control the
bases. The so-called parallel provisions of EDCA allow only operational control 1947
overMBA/ 1946 Treaty of General Relations EDCA
the Agreed Locations specifically for construction activities. They do not allow the
overarching power to operate, maintain, utilize, occupy, garrison, and control a base
with full discretion. EDCA in fact limits the rights of the U.S. in respect of every EDCA, preamble:
activity, including construction, by giving the MDB and the SEB the power to
determine the details of all activities such as, but not limited to, operation,
The Government of the Republic of the Philippines (hereinafter referred Affirming that the Parties share an understanding fo
maintenance, utility, occupancy, garrisoning, and control.322
grants to the Government of the United States of States not to establish a permanent military pre
America (hereinafter referred to as the United States) the right to retain territory of the Philippines;
The "species of ownership" on the other hand, is distinguished by theuse
the nature of the
of the bases in the Philippines listed in Annex A attached
property. For immovable property constructed or developed by the U.S., EDCA
xxxx
expresses that ownership will automatically be vested to the Philippines.323 On the
other hand, for movable properties brought into the Philippines by the U.S., EDCA
provides that ownership is retained by the latter. In contrast, the MBA dictates that the Recognizing that all United States access to and
U.S. retains ownership over immovable and movable properties. areas will be at the invitation of the Philippines a
All buildings and structures which are erected by the United for the Philippine Constitution and Philippine la
in the bases shall be the property of the United
To our mind, both EDCA and the MBA simply incorporate what is already the law of
may be removed by it before the expiration of this xxxx
the land in the Philippines. The Civil Code's provisions on ownership, as applied,
Agreement or the earlier relinquishment of the base on which the
grant the owner of a movable property full rights over that property, even if located in
structures are situated. There shall be no obligation on the part of the
another person's property.324 EDCA, Art. II(4):
Philippines or of the United States to rebuild or repair any destruction or
damage inflicted from any cause whatsoever on any of the said
The parallelism, however, ends when the situation involves facilities that can
buildings be
or structures owned or used by the United States in the bases. "Agreed Locations" means facilities and areas t
considered immovable. Under the MBA, the U.S. retains ownership if it paid for the the Government of the Philippines through the A
facility.325 Under EDCA, an immovable is owned by the Philippines, even if built States forces, United States contractors, and other
completely on the back of U.S. funding.326 This is consistent with the constitutional shall have the right to access and use pursuant to t
1946 Treaty of Gen. Relations, Art. I:
prohibition on foreign land ownership.327 Agreed Locations may be listed in an annex to be a
Agreement, and may be further described in implem
of America agrees to withdraw and surrender, and arrangements.
Despite the apparent similarity, the ownership of property is but a part of a larger
does hereby withdraw and surrender, all rights of possession,
whole that must be considered before the constitutional restriction is violated. Thus,
supervision, jurisdiction, control or sovereignty existing and
petitioners' points on operational control will be given more attention in the discussion EDCA, Art. V:
exercised by the United States of America in and over the territory
below. The arguments on policy are, however, outside the scope of judicial review
and the people of the Philippine Islands, except the use of such
and will not be discussed
, necessary appurtenances to such bases, and the rights 1. The Philippines shall retain ownership of and
, as the United States of America, by agreement with Locations.
Moreover, a direct comparison of the MBA and EDCA will result in theseveral important
Republic of the Philippines may deem necessary to retain for the
distinctions that would allay suspicion that EDCA is but a disguised version
mutual of the of the Republic of the Philippines and of the United
protection xxxx
MBA.

4. All buildings, non-relocatable structures, and

b. There are substantial matters that the US. cannot do under EDCA, but which it was
to the land in the Agreed Locations, including one
authorized to do under the 1947 MBA
improved by United States forces, remain the pro
Philippines.Permanent buildings constructed by U
The Philippine experience with U.S. military bases under the 1947 MBA is simply not become the property of the Philippines, once const
possible under EDCA for a number of important reasons. used by United States forces until no longer require
forces.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
Philippine territory occupied by American bases. In contrast, the U.S. under EDCA
does not enjoy any such right over any part of the Philippines in which its forces or
 EDCA, Art. III(5):

The Philippine Designated Authority and its aut

representative shall have access to the entire ar
Second, in the bases agreement, the U.S. and the Philippines were visibly not on Locations. Such access shall be provided promptl
equal footing when it came to deciding whether to expand or to increase the number operational safety and security requirements in acc
of bases, as the Philippines may be compelled to negotiate with the U.S. the moment procedures developed by the Parties.
the latter requested an expansion of the existing bases or to acquire additional bases.
In EDCA, U.S. access is purely at the invitation of the Philippines.

BA/ 1946 Treaty of General Relations
ee to enter into negotiations with the United
request, to permit the United States to expand
ange such bases for other bases, to acquire
relinquish rights to bases, as any of such
quired by military necessity.
Fourth, in the bases agreement, the U.S. retained the right, power, and authority over
EDCA the establishment, use, operation, defense, and control of military bases, including
the limits of territorial waters and air space adjacent to or in the vicinity of those
bases. The only standard used in determining the extent of its control was military
EDCA, preamble: necessity. On the other hand, there is no such grant of power or authority under
EDCA. It merely allows the U.S. to exercise operational control over the construction
of Philippine-owned structures and facilities:
Recognizing that all United States access to and use of facilities and
areas will be at the invitation of the Philippines
for the Philippine Constitution and Philippine laws;
1947 MBA EDCA
xxxx

Relations, Art. I: EDCA, Art. III(4):

EDCA. Art. II(4):

America agrees to withdraw and surrender, and The Philippines agrees to permit the United States, upon notice to the The Philippines hereby grants to the United State
"Agreed Locations" means facilities and areas
use such of those bases listed in Annex B as the security mechanisms, such as the MDB and SEB
w and surrender, all rights of possession, the Government ofUnitedthe Philippines through the
ction, control or sovereignty existing and States determines toAFP and that by
be required United
military necessity. control of Agreed Locations for construction
States forces, United States contractors, and others activities and authority to undertake such activi
ed States of America in and over the territory agreed, shall have the right to access and use pursuant to this
e Philippine Islands, except the use of such alterations and improvements to, Agreed Locations
Agreement. Such Agreed Locations may be listed in an annex to be forces shall consult on issues regarding such c
purtenances to such bases, and the rights incident appended to this Agreement, and may be further described in
d States of America, by agreement with the alterations, and improvements based on the Par
implementing arrangements.
It is mutually agreed that the United Statesshall have the rights, power that the technical requirements and construction st
ppines may deem necessary to retain for the and authority within the bases which are necessary for the
he Republic of the Philippines and of the United projects undertaken by or on behalf of United State
establishment, use, operation and defense thereof or appropriate consistent with the requirements and standards of
x x. and all the rights, power and authority within
the limits of territorial waters and air space adjacent to, or in the
, the bases which are necessary to provide access to
, or appropriate for their control.
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the
Agreed Locations. On the other hand, given that the U.S. had complete control over
its military bases under the 1947 MBA, the treaty did not provide for any express
recognition of the right of access of Philippine authorities. Without that provision and Fifth, the U.S. under the bases agreement was given the authority to use Philippine
in light of the retention of U.S. sovereignty over the old military bases, the U.S. could territory for additional staging areas, bombing and gunnery ranges. No such right is
effectively prevent Philippine authorities from entering those bases. given under EDCA, as seen below:

1947 MBA EDCA 1947 MBA EDCA

 EDCA, Art. III(1): EDCA, Art. III(2):

hall, subject to previous agreement with the With considerationSuch of the

rights,
viewspower
of theand
Parties
authority shall include, inter alia, the right, When requested, the Designated Authority of the P
right to use land and coastal sea areas of the Philippines herebypower authorizes
and authority:
and agrees
x x x that
x toUnited
improve States
and deepen the harbors, in facilitating transit or temporary access by Un
ocation for periodic maneuvers, for additional forces, United States channels,
contractors,
entrances
and vehicles,
and anchorages,
vessels, and andaircraft
to construct or maintain public land and facilities (including roads, ports, an
bing and gunnery ranges, and for such operated by or for United States forces and
may
bridges
conductaffording
the following
access to the bases. those owned or controlled by local governments, an
s as may be required for safe and efficient air activities with respect to Agreed Locations: training; transit; support and facilities (including roads, ports, and airfields).
s in such areas shall be carried on with due regard related activities; refueling of aircraft; bunkering of vessels; temporary
e public safety. maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of
equipment, supplies, and materiel; deploying forcesEighth, and materiel; and MBA, the U.S. was granted the automatic right to use any and all
in the 1947
such other activities as the Parties may agree. public utilities, services and facilities, airfields, ports, harbors, roads, highways,
es to permit the United States, upon notice to the railroads, bridges, viaducts, canals, lakes, rivers, and streams in the Philippines in the
uch of those bases listed in Annex B as the same manner that Philippine military forces enjoyed that right. No such arrangement
mines to be required by military necessity. appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public
land and facilities when requested:

1947 MBA EDCA

Sixth, under the MBA, the U.S. was given the right, power, and authority to control
and prohibit the movement and operation of all types of vehicles within the vicinity of
the bases. The U.S. does not have any right, power, or authority to do so under
EDCA. EDCA, Art. III(2):

1947 MBA
)(c)
nd authority shall include, inter alia, the right,
: x x x x to control (including the right to prohibit)
quired for the efficient operation and safety of the
limits of military necessity, anchorages,
takeoffs, movements and operation of ships
ft, aircraft and other vehicles on water, in the
rising
It is mutually agreed that the United States may employ and use for When requested, the Designated Authority of the P
United StatesEDCA
military forces any and all public utilities, other assist in facilitating transit or temporary access
, airfields, ports, harbors, roads, highways, forces to public land and facilities (including roads,
railroads, bridges, viaducts, canals, lakes, rivers and streams in the including those owned or controlled by local govern
No equivalent provision. under conditions no less favorable than those that may land and facilities (including roads, ports, and airfie
from time to time to the military forces of the
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to
construct, install, maintain, and employ any type of facility, weapon, substance,
device, vessel or vehicle, or system unlike in the old treaty. EDCA merely grants the
U.S., through bilateral security mechanisms, the authority to undertake construction,
alteration, or improvements on the Philippine-owned Agreed Locations.

Seventh, under EDCA, the U.S. is merely given temporary access to land and 1947 MBA EDCA
facilities (including roads, ports, and airfields). On the other hand, the old treaty gave
the U.S. the right to improve and deepen the harbors, channels, entrances, and
anchorages; and to construct or maintain necessary roads and bridges that would
afford it access to its military bases. EDCA, Art. III(4):

1947 MBA EDCA

nd authority shall include, inter alia, the right, The Philippines hereby grants to the United States, through bilateral EDCA, Art. II:
: x x x x to construct, install, maintain, and security mechanisms, such as the MDB and SEB, operational control
any type of facilities, weapons, substance, of Agreed LocationsItfor construction
is mutually activities
agreed and
that the United States shall have the right to 1. "United States personnel" means United State
hicle on or under the ground, in the air or on or undertake such activities on,the
bring into andPhilippines
make alterations
members andof the United States military forces civilian personneltemporarily in the territory of the
may be requisite or appropriate, including improvements to, Agreed United
Locations. United
States Statesemployed
nationals forces shallby or under a contract connection with activities approved by the Philippin
ms, aerial and water navigation lights, radio and consult on issues regarding
with thesuch
Unitedconstruction, alterations,
States together and families, and technical
with their are defined in the VFA.
electronic devices, of any desired power, type of improvements based on the Parties'
personnel shared
of other intent that(not
nationalities the being
technical
persons excluded by the
cy. requirements and construction standards ofinany
laws of the Philippines) such projects
connection with the construction,
undertaken by or onmaintenance,
behalf of United States forces should x xx x
or operation of the bases.beThe
consistent
United States shall make
with the requirements and standards of both Parties.
suitable arrangements so that such persons may be readily identified
and their status established when necessary by the Philippine 3. "United States contractors" means companies
authorities. Such persons, other than members of the United States employees, under contract or subcontract to or on
armed forces in uniform, shall present their travel documents to the States Department of Defense. United States contr
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation
appropriate Philippine authorities for visas, it being understood that no includedas part of the definition of United States
proceedings, real property belonging to any private person. The objection
old militarywill
bases
be made to their travel to the Philippines as non- Agreement, including within the context of the V
agreement gave this right to the U.S. as seen below:

1947 MBA EDCA

l):
sary to acquire by
propriation proceedings real property
vate persons, associations or corporations
ed in Annex A and Annex B in order to carry out the
ement, the Philippines will institute and prosecute
r expropriation proceedings in accordance with the
s. The United States agrees to reimburse the
reasonable expenses, damages and costs therebv
e value of the property as determined by the Court.
the mutual agreement of the two Governments,
reimburse the Philippines for the reasonable costs
removal of any occupants displaced or ejected by
mnation or expropriation.
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense
No equivalent provision. committed by any person within the Agreed Locations, unlike in the former military
bases:
1947 MBA EDCA
1947 MBA, Art. XIII(l)(a): No equivalent provision.
The Philippines consents that the United
right to exercise jurisdiction over the following
Any offense committed by any person within any
except where the offender and offended parties are both Philippine
citizens (not members of the armed forces of the United States on active
duty) or the offense is against the security of the Philippines.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non- Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX)
Philippine nationals who are under its employ, together with their families, in facilities, which is free of customs duties and taxes, unlike what the expired MBA
connection with the construction, maintenance, or operation of the bases. EDCA expressly allowed. Parenthetically, the PX store has become the cultural icon of U.S.
strictly adheres to the limits under the VFA. military presence in the country.

1947 MBA EDCA 1947 MBA EDCA


(l): No equivalent provision.
hat the United States
o establish on bases, free of all licenses; fees;
er taxes, or imposts; Government
concessions, such as sales commissaries
; messes and social clubs, for the exclusive use
military forces and authorized civilian
families. The merchandise or services sold or
gencies shall be free of all taxes, duties and
hilippine authorities. Administrative measures
appropriate authorities of the United States to
goods which are sold under the provisions of this
entitled to buy goods at such agencies and,
abuse of the privileges granted under this Article.
ration between such authorities and the Philippines
In sum, EDCA is a far cry from a basing agreement as was understood by the people
at the time that the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign
military bases" and "facilities" is required before EDCA can be deemed to have
passed judicial scrutiny.
c. The meaning of military facilities and bases
An appreciation of what a military base is, as understood by the Filipino people in
1987, would be vital in determining whether EDCA breached the constitutional
restriction.
Prior to the drafting of the 1987 Constitution, the last definition of "military base" was
provided under Presidential Decree No. (PD) 1227.328 Unlawful entry into a military
base is punishable under the decree as supported by Article 281 of the Revised Penal
Code, which itself prohibits the act of trespass.
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this
decree means any military, air, naval, or coast guard reservation, base, fort, camp,
arsenal, yard, station, or installation in the Philippines."
Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines
before the 1986 Constitutional Commission, listed the areas that he considered as
military bases:
1,000 hectares Camp O'Donnel
20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described its coverage in its
Declaration of Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to
accelerate the sound and balanced conversion into alternative productive uses of the
Clark and Subic military reservations and their extensions (John Hay Station, Wallace
Air Station, O'Donnell Transmitter Station, San Miguel Naval Communications Station
and Capas Relay Station), to raise funds by the sale of portions of Metro Manila
military camps, and to apply said funds as provided herein for the development and
conversion to productive civilian use of the lands covered under the 194 7 Military
Bases Agreement between the Philippines and the United States of America, as
amended.330
The result of the debates and subsequent voting is Section 25, Article XVIII of the
Constitution, which specifically restricts, among others, foreign military facilities or
bases. At the time of its crafting of the Constitution, the 1986 Constitutional
Commission had a clear idea of what exactly it was restricting. While the term
"facilities and bases" was left undefined, its point of reference was clearly those areas
covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world of
military technology and geopolitics has surpassed the understanding of the Philippine
people in 1986. The last direct military action of the U.S. in the region was the use of
Subic base as the staging ground for Desert Shield and Desert Storm during the Gulf
War.331In 1991, the Philippine Senate rejected the successor treaty of the 1947 MBA
that would have allowed the continuation of U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve
likewise, taking into consideration the subsisting agreements between both parties,
the rejection of the 1991 proposal, and a concrete understanding of what was
constitutionally restricted. This trend birthed the VFA which, as discussed, has already
been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed "Agreed
Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines through
the AFP and that United States forces, United States contractors, and others as
mutually agreed, shall have the right to access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an annex to be appended to this Agreement,
and may be further described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall
retain ownership of and title to the Agreed Locations means that EDCA is "consistent
with Article II of the VFA which recognizes Philippine sovereignty and jurisdiction over
locations within Philippine territory.333
By this interpretation, respondent acknowledges that the contention of petitioners
springs from an understanding that the Agreed Locations merely circumvent the
constitutional restrictions. Framed differently, the bone of contention is whether the
Agreed Locations are, from a legal perspective, foreign military facilities or bases.
This legal framework triggers Section 25, Article XVIII, and makes Senate
concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by
the Philippines to "conduct the following activities: "training; transit; support and
related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies and materiel; deploying forces
and materiel; and such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of the
Section 25 restriction.
d. Reasons for the constitutional requirements and legal standards for constitutionally
compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or base." While
it specifically alludes to U.S. military facilities and bases that existed during the
framing of the Constitution, the provision was clearly meant to apply to those bases
existing at the time and to any future facility or base. The basis for the restriction must
first be deduced from the spirit of the law, in order to set a standard for the application
of its text, given the particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from
their collective wisdom, the intent of Section 25. Their speeches are rich with history
and wisdom and present a clear picture of what they considered in the crafting the
provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases
provisions with what purports to be an objective presentation of the historical
background of the military bases in the Philippines. Care appears, however, to have
been taken to underscore the inequity in their inception as well as their
implementation, as to seriously reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after World War II are quoted
in support of the proposition on neutrality; regrettably, the implication is that the
same remains valid today, as if the world and international activity stood still for the
last 40 years.
We have been given inspired lectures on the effect of the presence of the
military bases on our sovereignty - whether in its legal or political sense is not
clear - and the theory that any country with foreign bases in its territory cannot
claim to be fully sovereign or completely independent. I was not aware that the
concepts of sovereignty and independence have now assumed the totality principle,
such that a willing assumption of some delimitations in the exercise of some aspects
thereof would put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on the
advisability of having military bases within our shores. Most of us who, only about
three months ago, were just mulling the prospects of these varying contentions are
now expected, like armchair generals, to decide not only on the geopolitical aspects
and contingent implications of the military bases but also on their political, social,
economic and cultural impact on our national life. We are asked to answer a plethora
of questions, such as: 1) whether the bases are magnets of nuclear attack or are
deterrents to such attack; 2) whether an alliance or mutual defense treaty is a
derogation of our national sovereignty; 3) whether criticism of us by Russia, Vietnam
and North Korea is outweighed by the support for us of the ASEAN countries, the
United States, South Korea, Taiwan, Australia and New Zealand; and 4) whether the
social, moral and legal problems spawned by the military bases and their operations
can be compensated by the economic benefits outlined in papers which have been
furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful
assertions of their positions. They are entitled to the luxury of the absolutes. We are
urged now to adopt the proposed declaration as a "golden," "unique" and
"last" opportunity for Filipinos to assert their sovereign rights. Unfortunately, I
have never been enchanted by superlatives, much less for the applause of the
moment or the ovation of the hour. Nor do I look forward to any glorious summer after
a winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke
a caveat not only against the tyranny of labels but also the tyranny of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the problem of
the removal of foreign bases from the Philippines have been adequately treated by
previous speakers. Let me, therefore, just recapitulate the arguments adduced in
favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own destiny without
outside interference;
2. That no lasting peace and no true sovereignty would ever be achieved
so long as there are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very
substance of national sovereigntyand this is a constant source of national
embarrassment and an insult to our national dignity and selfrespect as a
nation;
4. That these foreign military bases unnecessarily expose our country to
devastating nuclear attacks;
5. That these foreign military bases create social problems and are designed
to perpetuate the strangle-hold of United States interests in our national
economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate
to deprive our country of jurisdiction over civil and criminal
offenses committed within our own national territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon
our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases
agreements are null and void ab initio, especially because they did not count
the sovereign consent and will of the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could accommodate the
provisions I have cited, what is our objection to include in our Constitution a matter as
priceless as the nationalist values we cherish? A matter of the gravest concern for
the safety and survival of this nation indeed deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as a nation and
the future of generations to come with thirty pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons wherever they are
found and whoever owns them is that those are for killing people or for terrorizing
humanity. This objective by itself at any point in history is morally repugnant. This
alone is reason enough for us to constitutionalize the ban on foreign military bases
and on nuclear weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to remove
the bases because even if the bases are removed, the girls mired in poverty will look
for their clientele elsewhere. The remedy to the problem of prostitution lies primarily
elsewhere - in an alert and concerned citizenry, a healthy economy and a sound
education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign military bases
here is that they impair portions of our sovereignty. While I agree that our
country's sovereignty should not be impaired, I also hold the view that there are times
when it is necessary to do so according to the imperatives of national interest. There
are precedents to this effect. Thus, during World War II, England leased its bases in
the West Indies and in Bermuda for 99 years to the United States for its use as naval
and air bases. It was done in consideration of 50 overaged destroyers which the
United States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for the
latter's use as a naval base in the Indian Ocean. About the same time, the United
States obtained bases in Spain, Egypt and Israel. In doing so, these countries, in
effect, contributed to the launching of a preventive defense posture against possible
trouble in the Middle East and in the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of
American troops in the country is a projection of America's security interest. Enrile
said that nonetheless, they also serve, although in an incidental and secondary way,
the security interest of the Republic of the Philippines and the region. Yes, of course,
Mr. Enrile also echoes the sentiments of most of us in this Commission, namely: It is
ideal for us as an independent and sovereign nation to ultimately abrogate the
RP-US military treaty and, at the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military
bases in the Philippines provided that such an extension from one period to
another shall be concluded upon concurrence of the parties, and such
extension shall be based on justice, the historical amity of the people of the
Philippines and the United States and their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of
framing a constitution, I read a statement of President Aquino to the effect that she is
for the removal of the U.S. military bases in this country but that the removal of the
U.S. military bases should not be done just to give way to other foreign bases. Today,
there are two world superpowers, both vying to control any and all countries which
have importance to their strategy for world domination. The Philippines is one such
country.
Madam President, I submit that I am one of those ready to completely remove
any vestiges of the days of enslavement, but not prepared to erase them if to do
so would merely leave a vacuum to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our brethren in the
Middle East, in Indo-China, Central America, in South Africa - there has been
escalation of war in some of these areas because of foreign intervention which views
these conflicts through the narrow prism of the East-West conflict. The United States
bases have been used as springboards for intervention in some of these
conflicts. We should not allow ourselves to be party to the warlike mentality of
these foreign interventionists. We must always be on the side of peace – this
means that we should not always rely on military solution.352
xxxx
x x x The United States bases, therefore, are springboards for intervention in our
own internal affairs and in the affairs of other nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its fundamental
freedoms which should logically be declared in black and white in our fundamental
law of the land - the Constitution. Let us express our desire for national
sovereignty so we may be able to achieve national self-determination. Let us
express our desire for neutrality so that we may be able to follow active nonaligned
independent foreign policies. Let us express our desire for peace and a nuclear-free
zone so we may be able to pursue a healthy and tranquil existence, to have peace
that is autonomous and not imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa
magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang
pananatili ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong
patuloy na nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S.
military bases ay batong pabigat na patuloy na pinapasan ng sambayanang
Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. military
bases ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng
imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically
and culturally. Para sa sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang kahulugan ay magneto ng
isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S.
military bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the instruments
of domination and subservience has clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support for the
committee's position to enshrine in the Constitution a fundamental principle forbidding
foreign military bases, troops or facilities in any part of the Philippine territory as
a clear and concrete manifestation of our inherent right to national self-
determination, independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood
to the social cost of allowing foreign countries to maintain military bases in our
country. Previous speakers have dwelt on this subject, either to highlight its
importance in relation to the other issues or to gloss over its significance and !llake
this a part of future negotiations.357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions
and is the response of the Filipino people against this condition and other conditions
that have already been clearly and emphatically discussed in past deliberations. The
deletion, therefore, of Section 3 in the Constitution we are drafting will have the
following implications:
First, the failure of the Constitutional Commission to decisively respond to
the continuing violation of our territorial integrity via the military bases
agreement which permits the retention of U.S. facilities within the Philippine
soil over which our authorities have no exclusive jurisdiction contrary to the
accepted definition of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to an exception in
the application of a provision in the Bill of Rights that we have just drafted
regarding equal application of the laws of the land to all inhabitants, permanent or
otherwise, within its territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite
the condemnations of such practice by the world community of nations in the light of
overwhelming international approval of eradicating all vestiges of colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in the hope
that such can be wielded to force the United States government to concede to better
terms and conditions concerning the military bases agreement, including the transfer
of complete control to the Philippine government of the U.S. facilities, while in
the meantime we have to suffer all existing indignities and disrespect towards our
rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign military bases
as essentially a question of sovereignty which does not require in-depth studies or
analyses and which this forum has, as a constituent assembly drafting a constitution,
the expertise and capacity to decide on except that it lacks the political will that
brought it to existence and now engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if we reclaim,
restore, uphold and defend our national sovereignty. National sovereignty is what
the military bases issue is all about. It is only the sovereign people exercising their
national sovereignty who can design an independent course and take full control of
their national destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee report, specifically
Sections 3 and 4 on neutrality, nuclear and bases-free country, some views stress
sovereignty of the Republic and even invoke survival of the Filipino nation and
people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the committee
report to dismantle the American bases after 1991 only show the urgent need to free
our country from the entangling alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that
the so-called RP-US Bases Agreement will expire in 1991, that it infringes on our
sovereignty and jurisdiction as well as national dignity and honor, that it goes
against the UN policy of disarmament and that it constitutes unjust intervention in
our internal affairs.364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign military bases,
troops, or facilities, subject to the provisions of Section 25. It is thus important to read
its discussions carefully. From these discussions, we can deduce three legal
standards that were articulated by the Constitutional Commission Members. These
are characteristics of any agreement that the country, and by extension this Court,
must ensure are observed. We can thereby determine whether a military base or
facility in the Philippines, which houses or is accessed by foreign military troops, is
foreign or remains a Philippine military base or facility. The legal standards we find
applicable are: independence from foreign control, sovereignty and applicable law,
and national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's
drafting was aimed at asserting Philippine independence from the U.S., as well as
control over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over property.
Property is classified as private or public.365 It is public if "intended for public use, such
as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and others of similar character[,]" or "[t]hose which belong to the
State, without being for public use, and are intended for some public service or for the
development of the national wealth. "366
Quite clearly, the Agreed Locations are contained within a property for public use, be
it within a government military camp or property that belongs to the
Philippines.1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article 428 of
the Civil Code provides that "[t]he owner has the right to enjoy and dispose of a thing,
without other limitations than those established by law." Moreover, the owner "has
also a right of action against the holder and possessor of the thing in order to recover
it."
Philippine civil law therefore accords very strong rights to the owner of property, even
against those who hold the property. Possession, after all, merely raises a disputable
presumption of ownership, which can be contested through normal judicial
processes.367
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains
with the Philippine govemment.368 What U.S. personnel have a right to, pending
mutual agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the
Civil Code, since the owner may dispose of the property in whatever way deemed fit,
subject to the limits of the law. So long as the right of ownership itself is not
transferred, then whatever rights are transmitted by agreement does not completely
divest the owner of the rights over the property, but may only limit them in accordance
with law.
Hence, even control over the property is something that an owner may transmit freely.
This act does not translate into the full transfer of ownership, but only of certain rights.
In Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration
Commission, we stated that the constitutional proscription on property ownership is
not violated despite the foreign national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of
use and access. Under its pertinent provisions, it is the Designated Authority of the
Philippines that shall, when requested, assist in facilitating transit or access to public
land and facilities.371 The activities carried out within these locations are subject to
agreement as authorized by the Philippine govemment.372 Granting the U.S.
operational control over these locations is likewise subject to EDCA' s security
mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated
representative is given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control, which was so
feared by the Constitutional Commission. In fact, they seem to have been the product
of deliberate negotiation from the point of view of the Philippine government, which
balanced constitutional restrictions on foreign military bases and facilities against the
security needs of the country. In the 1947 MBA, the U.S. forces had "the right, power
and authority x x x to construct (including dredging and filling), operate, maintain,
utilize, occupy, garrison and control the bases."375 No similarly explicit provision is
present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military facilities and
bases has been raised by the present Constitution. Section 25 is explicit that foreign
military bases, troops, or facilities shall not be allowed in the Philippines, except under
a treaty duly concurred in by the Senate. Merely stating that the Philippines would
retain ownership would do violence to the constitutional requirement if the Agreed
Locations were simply to become a less obvious manifestation of the U.S. bases that
were rejected in 1991.
When debates took place over the military provisions of the Constitution, the
committee rejected a specific provision proposed by Commissioner Sarmiento. The
discussion illuminates and provides context to the 1986 Constitutional Commission's
vision of control and independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as follows:
"THE STATE SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-
RELIANT ARMED FORCES OF THE PHILIPPINES." Allow me to briefly explain,
Madam President. The Armed Forces of the Philippines is a vital component of
Philippine society depending upon its training, orientation and support. It will either be
the people's protector or a staunch supporter of a usurper or tyrant, local and foreign
interest. The Armed Forces of the Philippines' past and recent experience
shows it has never been independent and self-reliant. Facts, data and statistics
will show that it has been substantially dependent upon a foreign power. In March
1968, Congressman Barbero, himself a member of the Armed Forces of the
Philippines, revealed top secret documents showing what he described as U.S.
dictation over the affairs of the Armed Forces of the Philippines. He showed that
under existing arrangements, the United States unilaterally determines not only
the types and quantity of arms and equipments that our armed forces would
have, but also the time when these items are to be made available to us. It is
clear, as he pointed out, that the composition, capability and schedule of
development of the Armed Forces of the Philippines is under the effective
control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution
that would assert "independent" and "self-reliant" armed forces. This proposal was
rejected by the committee, however. As Commissioner De Castro asserted, the
involvement of the Philippine military with the U.S. did not, by itself, rob the
Philippines of its real independence. He made reference to the context of the
times: that the limited resources of the Philippines and the current insurgency at that
time necessitated a strong military relationship with the U.S. He said that the U.S.
would not in any way control the Philippine military despite this relationship and the
fact that the former would furnish military hardware or extend military assistance and
training to our military. Rather, he claimed that the proposal was in compliance with
the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military
bases on 12 September 1986, I spoke on the selfreliance policy of the armed forces.
However, due to very limited resources, the only thing we could do is manufacture
small arms ammunition. We cannot blame the armed forces. We have to blame the
whole Republic of the Philippines for failure to provide the necessary funds to make
the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And I would
like it that way. But as of this time, fighting an insurgency case, a rebellion in our
country - insurgency - and with very limited funds and very limited number of men, it
will be quite impossible for the Philippines to appropriate the necessary funds
therefor. However, if we say that the U.S. government is furnishing us the
military hardware, it is not control of our armed forces or of our government. It
is in compliance with the Mutual Defense Treaty. It is under the military assistance
program that it becomes the responsibility of the United States to furnish us the
necessary hardware in connection with the military bases agreement. Please be
informed that there are three (3) treaties connected with the military bases
agreement; namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty
and the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and we are furnished the
military hardware pursuant to that treaty, it is not in control of our armed forces
nor control of our government. True indeed, we have military officers trained in the
U.S. armed forces school. This is part of our Military Assistance Program, but it does
not mean that the minds of our military officers are for the U.S. government, no. I am
one of those who took four courses in the United States schools, but I assure you, my
mind is for the Filipino people. Also, while we are sending military officers to train or to
study in U.S. military schools, we are also sending our officers to study in other
military schools such as in Australia, England and in Paris. So, it does not mean that
when we send military officers to United States schools or to other military schools,
we will be under the control of that country. We also have foreign officers in our
schools, we in the Command and General Staff College in Fort Bonifacio and in our
National Defense College, also in Fort Bonifacio.377 (Emphases supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled that
independence does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" does not necessarily rule out the entry of foreign investments, goods
and services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it means avoiding mendicancy
in the international community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic industries as in
the development of natural resources and public utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is
therefore the assertion of independence from the U.S. and other foreign powers, as
independence is exhibited by the degree of foreign control exerted over these
areas.1âwphi1 The essence of that independence is self-governance and self-
control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and authority over
Philippine facilities and locations, such that the agreement effectively violates Section
25 of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for
"operational control and defense." The term "operational control" has led petitioners to
regard U.S. control over the Agreed Locations as unqualified and, therefore,
total.382 Petitioners contend that the word "their" refers to the subject "Agreed
Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or defense, including taking
appropriate measure to protect United States forces and United States contractors.
The United States should coordinate such measures with appropriate authorities of
the Philippines.
A basic textual construction would show that the word "their," as understood above, is
a possessive pronoun for the subject "they," a third-person personal pronoun in plural
form. Thus, "their" cannot be used for a non-personal subject such as "Agreed
Locations." The simple grammatical conclusion is that "their" refers to the previous
third-person plural noun, which is "United States forces." This conclusion is in line
with the definition of operational control.
a. U.S. operational control as the exercise of authority over U.S. personnel, and not
over the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a military term
referring to
[t]he authority to perform those functions of command over subordinate forces
involving organizing and employing commands and forces, assigning tasks,
designating objective, and giving authoritative direction necessary to accomplish the
mission.383
At times, though, operational control can mean something slightly different.
In JUSMAG Philippines v. National Labor Relations Commission, the Memorandum of
Agreement between the AFP and JUSMAG Philippines defined the term as follows:384
The term "Operational Control" includes, but is not limited to, all personnel
administrative actions, such as: hiring recommendations; firing recommendations;
position classification; discipline; nomination and approval of incentive awards; and
payroll computation.
Clearly, traditional standards define "operational control" as personnel control.
Philippine law, for instance, deems operational control as one exercised by police
officers and civilian authorities over their subordinates and is distinct from the
administrative control that they also exercise over police subordinates.385 Similarly, a
municipal mayor exercises operational control over the police within the municipal
government,386 just as city mayor possesses the same power over the police within
the city government.387
Thus, the legal concept of operational control involves authority over personnel in a
commander-subordinate relationship and does not include control over the Agreed
Locations in this particular case. Though not necessarily stated in EDCA provisions,
this interpretation is readily implied by the reference to the taking of "appropriate
measures to protect United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational control over its own
forces, in much the same way that the Philippines exercises operational control over
its own units.
For actual operations, EDCA is clear that any activity must be planned and pre-
approved by the MDB-SEB.388 This provision evinces the partnership aspect of EDCA,
such that both stakeholders have a say on how its provisions should be put into
effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over personnel,
qualifying access to the Agreed Locations by the Philippine Designated Authority with
the phrase "consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties" leads to the
conclusion that the U.S. exercises effective control over the Agreed Locations.389 They
claim that if the Philippines exercises possession of and control over a given area, its
representative should not have to be authorized by a special provision.390
For these reasons, petitioners argue that the "operational control" in EDCA is the
"effective command and control" in the 1947 MBA.391 In their Memorandum, they
distinguish effective command and control from operational control in U.S.
parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint
Publication 1, "command and control (C2)" is defined as "the exercise of authority and
direction by a properly designated commander over assigned and attached forces in
the accomplishment of the mission x x x."393 Operational control, on the other hand,
refers to "[t]hose functions of command over assigned forces involving the
composition of subordinate forces, the assignment of tasks, the designation of
objectives, the overall control of assigned resources, and the full authoritative
direction necessary to accomplish the mission."394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties" does not add any
qualification beyond that which is already imposed by existing treaties. To recall,
EDCA is based upon prior treaties, namely the VFA and the MDT.395 Treaties are in
themselves contracts from which rights and obligations may be claimed or
waived.396 In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and the
Philippines based on the implementation of their treaty relations.397
Secondly, the full document cited by petitioners contradicts the equation of
"operational control" with "effective command and control," since it defines the terms
quite differently, viz:398
Command and control encompasses the exercise of authority, responsibility, and
direction by a commander over assigned and attached forces to accomplish the
mission. Command at all levels is the art of motivating and directing people and
organizations into action to accomplish missions. Control is inherent in command. To
control is to manage and direct forces and functions consistent with a commander's
command authority. Control of forces and functions helps commanders and staffs
compute requirements, allocate means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of tenets, organization, and
processes for effective C2 is provided in Section B, "Command and Control of Joint
Forces," of Chapter V "Joint Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM. It is the
authority to perform those functions of command over subordinate forces involving
organizing and employing commands and forces, assigning tasks, designating
objectives, and giving authoritative direction over all aspects of military operations
and joint training necessary to accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations; normally, this authority is
exercised through subordinate JFCs, Service, and/or functional component
commanders. OPCON provides authority to organize and employ commands and
forces as the commander considers necessary to accomplish assigned missions. It
does not include authoritative direction for logistics or matters of administration,
discipline, internal organization, or unit training. These elements of COCOM must be
specifically delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command, while
command and control is the overall power and responsibility exercised by the
commander with reference to a mission. Operational control is a narrower power and
must be given, while command and control is plenary and vested in a commander.
Operational control does not include the planning, programming, budgeting, and
execution process input; the assignment of subordinate commanders; the building of
relationships with Department of Defense agencies; or the directive authority for
logistics, whereas these factors are included in the concept of command and
control.400
This distinction, found in the same document cited by petitioners, destroys the very
foundation of the arguments they have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only for construction
activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S.
operational control within the Agreed Locations during construction activities.401 This
exercise of operational control is premised upon the approval by the MDB and the
SEB of the construction activity through consultation and mutual agreement on the
requirements and standards of the construction, alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be emphasized that the
grant is only for construction activities. The narrow and limited instance wherein the
U.S. is given operational control within an Agreed Location cannot be equated with
foreign military control, which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction activities,
operational control over the Agreed Location is vested in the Philippine authorities.
This meaning is implicit in the specific grant of operational control only during
construction activities. The principle of constitutional construction, "expressio unius
est exclusio alterius," means the failure to mention the thing becomes the ground for
inferring that it was deliberately excluded.403Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed Locations for
construction activities, then it is quite logical to conclude that it is not exercised over
other activities.
Limited control does not violate the Constitution. The fear of the commissioners was
total control, to the point that the foreign military forces might dictate the terms of their
acts within the Philippines.404 More important, limited control does not mean an
abdication or derogation of Philippine sovereignty and legal jurisdiction over the
Agreed Locations. It is more akin to the extension of diplomatic courtesies and rights
to diplomatic agents,405 which is a waiver of control on a limited scale and subject to
the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the
Constitution: that the Philippines must retain sovereignty and jurisdiction over its
territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to establish
a permanent military presence or base in the territory of the Philippines." Further on, it
likewise states the recognition that "all United States access to and use of facilities
and areas will be at the invitation of the Philippines and with full respect for the
Philippine Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light
of Philippine sovereignty and jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is the
conferment by law of power and authority to apply the law.407 Article I of the 1987
Constitution states:
The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the Philippines that
the U.S. forces are allowed to access and use.408 By withholding ownership of these
areas and retaining unrestricted access to them, the government asserts sovereignty
over its territory. That sovereignty exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with respect to
the Agreed Locations.410Hence, Philippine law remains in force therein, and it cannot
be said that jurisdiction has been transferred to the U.S. Even the previously
discussed necessary measures for operational control and defense over U.S. forces
must be coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the MBA,
Philippine laws continue to be in force within the bases.412 The difference between
then and now is that EDCA retains the primary jurisdiction of the Philippines over the
security of the Agreed Locations, an important provision that gives it actual control
over those locations. Previously, it was the provost marshal of the U.S. who kept the
peace and enforced Philippine law in the bases. In this instance, Philippine forces act
as peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the Agreed
Locations must not impair or threaten the national security and territorial integrity of
the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology has
essentially rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare
such as nuclear weapons, guided missiles as well as huge sea vessels that can stay
afloat in the sea even for months and years without returning to their home country.
These military warships are actually used as substitutes for a land-home base not
only of military aircraft but also of military personnel and facilities. Besides, vessels
are mobile as compared to a land-based military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not
allow, for instance, the re-establishment of the Subic military base or the Clark Air
Field as U.S. military reservations. In this context, therefore, this Court has interpreted
the restrictions on foreign bases, troops, or facilities as three independent restrictions.
In accord with this interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a military
base is.415 While the source is not authoritative, petitioners make the point that the
Agreed Locations, by granting access and use to U.S. forces and contractors, are
U.S. bases under a different name.416 More important, they claim that the Agreed
Locations invite instances of attack on the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the realm of
law, but of politics and policy. At the very least, we can say that under international
law, EDCA does not provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations
simply because of the presence of U.S. personnel. Article 2(4) of the United Nations
Charter states that "All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations."418 Any unlawful attack on the Philippines breaches the treaty, and triggers
Article 51 of the same charter, which guarantees the inherent right of individual or
collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international
humanitarian law standards prevent participants in an armed conflict from targeting
non-participants. International humanitarian law, which is the branch of international
law applicable to armed conflict, expressly limits allowable military conduct exhibited
by forces of a participant in an armed conflict.419 Under this legal regime, participants
to an armed conflict are held to specific standards of conduct that require them to
distinguish between combatants and non-combatants,420 as embodied by the Geneva
Conventions and their Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of international law at the
University of Leicester, noted that there is no legal consensus for what constitutes a
base, as opposed to other terms such as "facilities" or "installation."422 In strategic
literature, "base" is defined as an installation "over which the user State has a right to
exclusive control in an extraterritorial sense."423 Since this definition would exclude
most foreign military installations, a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of "base" is one that
does not fulfill a combat role. He cites an example of the use of the territory of a state
for training purposes, such as to obtain experience in local geography and climactic
conditions or to carry out joint exercises.424 Another example given is an advanced
communications technology installation for purposes of information gathering and
communication.425 Unsurprisingly, he deems these non-combat uses as borderline
situations that would be excluded from the functional understanding of military bases
and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a building or
person is presumed to be protected, unless proven otherwise.427 Moreover, the
principle of distinction requires combatants in an armed conflict to distinguish
between lawful targets428 and protected targets.429 In an actual armed conflict between
the U.S. and a third state, the Agreed Locations cannot be considered U.S. territory,
since ownership of territory even in times of armed conflict does not change.430
Hence, any armed attack by forces of a third state against an Agreed Location can
only be legitimate under international humanitarian law if it is against a bona fide U.S.
military base, facility, or installation that directly contributes to the military effort of the
U.S. Moreover, the third state's forces must take all measures to ensure that they
have complied with the principle of distinction (between combatants and non-
combatants).
There is, then, ample legal protection for the Philippines under international law that
would ensure its territorial integrity and national security in the event an Agreed
Location is subjected to attack. As EDCA stands, it does not create the situation so
feared by petitioners - one in which the Philippines, while not participating in an
armed conflict, would be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of allowing the
presence of U.S. personnel within our territory and is therefore outside the scope of
judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or
facilities within the military base of another sovereign state is nothing new on the
international plane. In fact, this arrangement has been used as the framework for
several defense cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
 3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their military
bases.437 That access is without rental or similar costs to the U.S.438 Further, U.S.
forces are allowed to undertake construction activities in, and make alterations and
improvements to, the agreed locations, facilities, or areas.439 As in EDCA, the host
states retain ownership and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-related
rights to the U.S. For example, under Article IV(l) of the US.-Bulgaria Defense
Cooperation Agreement, "the United States forces x x x are authorized access to and
may use agreed facilities and areas x x x for staging and deploying of forces and
materiel, with the purpose of conducting x x x contingency operations and other
missions, including those undertaken in the framework of the North Atlantic Treaty." In
some of these agreements, host countries allow U.S. forces to construct facilities for
the latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new. In Lim
v. Executive Secretary, the Court already upheld the Terms of Reference of Balikatan
02-1, which authorized U.S. forces to set up "[t]emporary structures such as those for
troop billeting, classroom instruction and messing x x x during the Exercise." Similar
provisions are also in the Mutual Logistics Support Agreement of 2002 and 2007,
which are essentially executive agreements that implement the VFA, the MDT, and
the 1953 Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services,"442 which include
"[b ]illeting, x x x operations support (and construction and use of temporary
structures incident to operations support), training services, x x x storage services, x x
x during an approved activity."443 These logistic supplies, support, and services
include temporary use of "nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an
approved activity."444 The first Mutual Logistics Support Agreement has lapsed, while
the second one has been extended until 2017 without any formal objection before this
Court from the Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to those in the
aforementioned executive agreements. Instead of authorizing the building of
temporary structures as previous agreements have done, EDCA authorizes the U.S.
to build permanent structures or alter or improve existing ones for, and to be owned
by, the Philippines.445 EDCA is clear that the Philippines retains ownership of altered
or improved facilities and newly constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas
for "training; x x x; support and related activities; x x x; temporary accommodation of
personnel; communications" and agreed activities.447
Concerns on national security problems that arise from foreign military equipment
being present in the Philippines must likewise be contextualized. Most
significantly, the VFA already authorizes the presence of U.S. military equipment
in the country. Article VII of the VFA already authorizes the U.S. to import into or
acquire in the Philippines "equipment, materials, supplies, and other property" that will
be used "in connection with activities" contemplated therein. The same section also
recognizes that "[t]itle to such property shall remain" with the US and that they have
the discretion to "remove such property from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the prepositioning and storing
of "defense equipment, supplies, and materiel,"448 since these are sanctioned in the
VFA. In fact, the two countries have already entered into various implementing
agreements in the past that are comparable to the present one. The Balikatan 02-
1 Terms of Reference mentioned in Lim v. Executive Secretary specifically recognizes
that Philippine and U.S. forces "may share x x x in the use of their resources,
equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services, including the
"construction and use of temporary structures incident to operations support" and
"storage services" during approved activities.449 These logistic supplies, support, and
services include the "temporary use of x x x nonlethal items of military equipment
which are not designated as significant military equipment on the U.S. Munitions List,
during an approved activity."450Those activities include "combined exercises and
training, operations and other deployments" and "cooperative efforts, such as
humanitarian assistance, disaster relief and rescue operations, and maritime anti-
pollution operations" within or outside Philippine territory.451 Under EDCA, the
equipment, supplies, and materiel that will be prepositioned at Agreed Locations
include "humanitarian assistance and disaster relief equipment, supplies, and
materiel. "452 Nuclear weapons are specifically excluded from the materiel that will be
prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to
our national security. If anything, EDCA increases the likelihood that, in an event
requiring a defensive response, the Philippines will be prepared alongside the U.S. to
defend its islands and insure its territorial integrity pursuant to a relationship built on
the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the MDT only refers
to mutual help and defense in the Pacific area.453 We believe that any discussion of
the activities to be undertaken under EDCA vis-a-vis the defense of areas beyond the
Pacific is premature. We note that a proper petition on that issue must be filed before
we rule thereon. We also note that none of the petitions or memoranda has attempted
to discuss this issue, except only to theorize that the U.S. will not come to our aid in
the event of an attack outside of the Pacific. This is a matter of policy and is beyond
the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the initial
impression of the facility adverted to does appear to be one of those that require a
public franchise by way of congressional action under Section 11, Article XII of the
Constitution. As respondents submit, however, the system referred to in the
agreement does not provide telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication
system is solely for the use of the U.S. and not the public in general, and that this
system will not interfere with that which local operators use. Consequently, a public
franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons within Philippine territory
is entirely speculative. It is noteworthy that the agreement in fact specifies that the
prepositioned materiel shall not include nuclear weapons.455Petitioners argue that
only prepositioned nuclear weapons are prohibited by EDCA; and that, therefore, the
U.S. would insidiously bring nuclear weapons to Philippine territory.456 The general
prohibition on nuclear weapons, whether prepositioned or not, is already expressed in
the 1987 Constitution.457 It would be unnecessary or superfluous to include all
prohibitions already in the Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under the law
must originate from Congress. This allegation ignores jurisprudence on the
government's assumption of tax liability. EDCA simply states that the taxes on the use
of water, electricity, and public utilities are for the account of the Philippine
Government.458 This provision creates a situation in which a contracting party
assumes the tax liability of the other.459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable stipulations on the
assumption of tax liability. Afterwards, we concluded that an enforceable assumption
of tax liability requires the party assuming the liability to have actual interest in the
property taxed.460 This rule applies to EDCA, since the Philippine Government stands
to benefit not only from the structures to be built thereon or improved, but also from
the joint training with U.S. forces, disaster preparation, and the preferential use of
Philippine suppliers.461 Hence, the provision on the assumption of tax liability does not
constitute a tax exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to provisions
already sufficiently addressed above. This Court takes this occasion to emphasize
that the agreement has been construed herein as to absolutely disauthorize the
violation of the Constitution or any applicable statute. On the contrary, the applicability
of Philippine law is explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by
noted personalities in Philippine history arises not so much from xenophobia, but from
a genuine desire for self-determination, nationalism, and above all a commitment to
ensure the independence of the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of
his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him
when he deems that additional security measures are made necessary by the times.
As it stands, the Philippines through the Department of Foreign Affairs has filed
several diplomatic protests against the actions of the People's Republic of China in
the West Philippine Sea;462 initiated arbitration against that country under the United
Nations Convention on the Law of the Sea;463 is in the process of negotiations with the
Moro Islamic Liberation Front for peace in Southern Philippines,464 which is the
subject of a current case before this Court; and faces increasing incidents of
kidnappings of Filipinos and foreigners allegedly by the Abu Sayyaf or the New
People's Army.465 The Philippine military is conducting reforms that seek to ensure the
security and safety of the nation in the years to come.466 In the future, the Philippines
must navigate a world in which armed forces fight with increasing sophistication in
both strategy and technology, while employing asymmetric warfare and remote
weapons.
Additionally, our country is fighting a most terrifying enemy: the backlash of Mother
Nature. The Philippines is one of the countries most directly affected and damaged by
climate change. It is no coincidence that the record-setting tropical
cyclone Yolanda (internationally named Haiyan), one of the most devastating forces
of nature the world has ever seen hit the Philippines on 8 November 2013 and killed
at least 6,000 people.467 This necessitated a massive rehabilitation project.468 In the
aftermath, the U.S. military was among the first to extend help and support to the
Philippines.
That calamity brought out the best in the Filipinos as thousands upon thousands
volunteered their help, their wealth, and their prayers to those affected. It also brought
to the fore the value of having friends in the international community.
In order to keep the peace in its archipelago in this region of the world, and to sustain
itself at the same time against the destructive forces of nature, the Philippines will
need friends. Who they are, and what form the friendships will take, are for the
President to decide. The only restriction is what the Constitution itself expressly
prohibits. It appears that this overarching concern for balancing constitutional
requirements against the dictates of necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains
consistent with existing laws and treaties that it purports to implement.
WHEREFORE, we hereby DISMISS the petitions.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice
WE CONCUR:
See Separate Concurring
Opinion PRESBITERO J. VELASCO
ANTONIO T. CARPIO Associate Justice
Associate Justice
 I dissent:
I dissent:
See my dissenting opinion
See my Dissenting Opinion
TERESITA J. LEONARDO-CA
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

I join the separate concurring of

I join J. carpio's opinion
J. Carpio
DIOSDADO M. PERALTA
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

I join the dissenting opinion

BIENVENIDO L. REYES ESTELA M. PERLAS-
Associate Justice BERNABE
Associate Justice

I dissent. See separate opinion No Part

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA*
Associate Justice Associate Justice

C E RTI F I CATI O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in
the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice