EDCA Memorandum

REPUBLIC OF THE PHILIPPINES SUPREME COURT

MANILA

EN BANC

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by its Secretary General, RENATO M. REYES, JR., et al.,

Petitioners,

-versus- DEPARTMENT OF DEFENSE SECRETARY VOLTAIRE GAZMIN, et al.,

Respondents. x---------------------------------------------x RENE A.V. SAGUISAG, et al.,

Petitioners,

-versus- EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., et al.,

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

G.R. No. 212444

G.R. No. 212426

KILUSANG MAYO UNO, represented by its Chairperson, ELMER LABOG, et al.,

Petitioners-in-Intervention. x---------------------------------------------x RENE A.Q. SAGUISAG, JR.,

Petitioners-in-Intervention.

x-----------------------------------------------------------------------------------x

MEMORANDUM 2 G.R. Nos. 212444, 212426

MEMORANDUM

Respondents, through the Office of the Solicitor General (OSG),

respectfully state:

RELEVANT FACTS

1. The Mutual Defense Treaty. On 30 August 1951, the Republic of

the Philippines and the United States of America (US) entered into the

Mutual Defense Treaty (MDT) which stipulates that the parties shall

“maintain and develop their individual and collective capacity to resist

armed attack.”1 The MDT, concurred in by the Philippine Senate on 12

May 1952,2 locates the parties’ obligations within their commitments

under the Charter of the United Nations (UN). Article I of the MDT

provides:

The Parties undertake, as set forth in the Charter of the United

Nations, to settle any international disputes in which they may be

involved by peaceful means in such a manner that international peace

and security and justice are not endangered and to refrain in their

international relations from the threat or use of force in any manner

inconsistent with the purposes of the United Nations.

2. The Visiting Forces Agreement. To implement the MDT and the

objective of both parties “to strengthen their present efforts to collective

defense for the preservation of peace and security,”3 the Republic of the

Philippines and the US entered into the Visiting Forces Agreement (VFA)

on 10 February 1998. The VFA was concurred in by the Philippine Senate

on 27 May 1999.4 It lays down the terms and conditions under which US

personnel5 and facilities6 may be present in the Philippines.

3. Under the VFA, the Philippines and the US have participated

in the annual Balikatan exercises, which involve the training of Philippine

troops to enhance defense capabilities and promote interoperability of

1 MDT, Article II. 2 S.R. No. 84, 12 May 1952. 3 VFA, Preamble. 4 S.R. No. 18, 27 May 1999. 5 VFA, Article I. 6 VFA, Article VII.


Philippine and US forces.7 The VFA was recognized as an implementing

agreement of the VFA in Nicolas v. Romulo.8

4. The Enhanced Defense Cooperation Agreement. To implement the

MDT and the VFA,9 the Enhanced Defense Cooperation Agreement

(EDCA) was signed by Department of National Defense (DND)

Secretary Voltaire Gazmin for the Philippines and by US Ambassador to

the Philippines Philip Goldberg for the US on 28 April 2014.

ISSUE

WHETHER THE ENHANCED DEFENSE COOPERATION

AGREEMENT IS UNCONSTITUTIONAL.

SUMMARY OF ARGUMENTS

I. PETITIONERS HAVE NO STANDING TO BRING THESE SUITS.

II. EXECUTIVE AGREEMENTS FIND SUPPORT IN THE

CONSTITUTION AND JURISPRUDENCE.

III. THE EDCA IS AN EXECUTIVE AGREEMENT WHICH

IMPLEMENTS THE MDT AND THE VFA.

A. THE EDCA IMPLEMENTS THE MDT.

B. THE EDCA IMPLEMENTS THE VFA.

C. THE EDCA PROVIDES A SYSTEM THAT DETAILS THE

CONDUCT OF ACTIVITIES ALREADY AUTHORIZED

UNDER THE MDT AND THE VFA.

D. THE MDT AND THE VFA CONSTITUTE THE

SUFFICIENT, PRIOR LICENSES FOR THE EDCA.

IV. A SENATE REFERRAL OF THE EDCA WILL CREATE

MULTIPLE FUNDAMENTAL CONSTITUTIONAL PROBLEMS.

V. ASSORTED ISSUES RAISED BY THE PETITIONS

7 Terms of Reference approved by Department of Foreign Affairs Secretary Teofisto T. Guingona, cited in Lim v. Executive Secretary, G.R. No. 151445, 11 April 2002. 8 G.R. No. 175888, 11 February 2009. 9 EDCA, Preamble.


A. ON PREPOSITIONING

B. ON OPERATIONAL CONTROL AND SELF DEFENSE

C. ON TELECOMMUNICATIONS

D. ON NUCLEAR WEAPONS

E. ON DISPUTE RESOLUTION

F. ON THE APPLICABILITY OF LOCAL LAWS

DISCUSSION

I.

PETITIONERS HAVE NO STANDING TO BRING THESE SUITS.

5. Lack of standing to assert institutional prerogatives. Petitioners assail

the constitutionality of the EDCA on the ground that it is a treaty that

requires the concurrence of the Senate under Article XVIII, Section 25 of

the Constitution. However, none of the petitioners is a member of the

Senate.

6. The capacity of the Senate to sue as an institution in cases

involving alleged impairment of its constitutional prerogatives is

exemplified in Gonzales v. Macaraig.10 In said case, 23 Senators, comprising

the entire membership of the Senate, filed a petition to nullify the

presidential veto of Section 55 of the 1989 General Appropriations Bill.

The filing of the suit was authorized by Senate Resolution No. 381 dated

02 February 1989, which reads:

Authorizing and Directing the Committee on Finance to Bring in the

Name of the Senate of the Philippines the Proper Suit with the

Supreme Court of the Philippines contesting the Constitutionality of

the Veto by the President of Special and General Provisions,

particularly Section 55, of the General Appropriation Bill of 1989 (H.B.

No. 19186) and For Other Purposes.

… … …

WHEREAS, Be it Resolved, as it is hereby Resolved, That the Senate

express its sense that the veto by the President of Section 55 of the

10 G.R. No. 87636. 19 November 1990.


GENERAL PROVISIONS of the General Appropriation Bill of 1989

(H.B. No. 19186) is unconstitutional and, therefore, void and without

any force and effect; hence, the aforesaid Section 55 remains;

… … …

7. In Philconsa v. Enriquez,11 suits were filed by some members of

the Senate to question the validity of a presidential veto and a condition

imposed on an item in an appropriation bill without an enabling

resolution for the purpose. Nevertheless, the Court allowed the suits and

ruled that “[a]n act of the Executive which injures the institution of

Congress causes a derivative but nonetheless substantial injury, which can

be questioned by a member of Congress.”12 The Court said that “[t]o the

extent the power of Congress is impaired, so is the power of each

member thereof, since his office confers a right to participate in the

exercise of the powers of that institution.”13

8. The rule, therefore, is that only the Senate itself may sue to

invoke the powers of the courts on matters involving its constitutional

prerogatives. This naturally makes sense given the requirement of “injury

in fact” essential for the operation of the “case or controversy”

component of the jurisdiction of courts in constitutional law cases. Those

whose rights are allegedly violated are, of course, in the best position to

fully articulate the nature and details of the injury they have suffered,

creating that “concrete adverseness that sharpens the presentation of

issues.”14

9. By way of exception, incumbent Senators have been allowed by

courts to file cases in behalf of their institution, in cases where the court is

convinced that there are sufficient grounds to dispense with the rules of

agency. At a minimum, only incumbent Senators may be recognized to

have standing to raise the issue of Senate concurrence because it is their

constitutional function that is allegedly impaired.15

10. Only incumbent Senators may raise this issue because they

alone have “legal standing to see to it that the prerogative, powers and

11 G.R. No. 113105, 19 August 1994. 12 Id. 13 Id. 14 Baker v. Carr, 369 U.S. 186 (1962). 15 CONSTITUTION, Art. VII, Sec. 21. 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.


privileges vested by the Constitution in their office remain inviolate.”16 It

is a curious fact that only former Senators joined petitioners in filing these

cases. As such, they are in no position to concur in the EDCA and thus

are not injured by the alleged lack of Senate concurrence.

11. There is also no allegation that members of the Senate have

been prevented from exercising their privileges. The argument that the

Senate could not have joined the petitioners in filing these cases as it was

not made aware of the EDCA is belied by the fact that the EDCA has

been the subject of a number of Senate hearings where members of the

negotiating panel from the DND and the Department of Foreign Affairs

(DFA) were interpellated.17

12. The Senators are well-informed of the contents and coverage

of the EDCA and are presumed to have seriously considered whether the

EDCA is a treaty that requires their concurrence. The contents of the

EDCA have been available in the public domain for several months now,

or since April 2014.

13. To date, the Senate has not issued a Resolution expressing its

objection to the EDCA, much less authorized any of its members to file a

suit on its behalf.18 The silence and active non-participation of the Senate

in the current proceedings is an affirmation of the President’s

characterization of the EDCA as an executive agreement.

14. Absent any clear evidence that Senators have been prevented

from invoking the privileges of their institution, the Honorable Court

must presume that the Senate itself sees no need for such concurrence.

Consequently, no actual case or controversy exists that would warrant the

exercise of the Honorable Court’s power of judicial review.

15. The Honorable Court should not conflate “petitions” and

“cases or controversies” under the Constitution. The mere filing of a

16 Biraogo v. The Philippine Truth Commission, G.R. No. 192935, 07 December 2010. 17 Joint Hearing by the Senate Committee on Defense and Security with the Senate Committee on Foreign Relations, 13 May 2014; Hearing by the Senate Committee on Foreign Relations, 22 October 2014 and 01 December 2014. 18 Senate Foreign Relations Committee Chairperson Senator Miriam Defensor-Santiago said that she would ask her colleagues to adopt a resolution that will express the Senate’s views that the agreement should be concurred by the Senate. See http://www.philstar.com/headlines/2014/12/01/1397976/law-experts-tell-senate-edca-needs-senate-concurrence

http://www.philstar.com/headlines/2014/12/01/1397976/law-experts-tell-senate-edca-needs-senate-concurrence

http://www.philstar.com/headlines/2014/12/01/1397976/law-experts-tell-senate-edca-needs-senate-concurrence


petition does not automatically present a “case” within the meaning of the

“actual case or controversy” requirement of the Constitution.

16. An actual case or controversy which would trigger the

exercise of the Honorable Court’s judicial review powers refers to “a

conflict of legal right, an opposite legal claim susceptible of judicial

resolution.”19 It must be “definite and concrete, bearing upon the legal

relations of parties who are pitted against each other due to their adverse legal

interests.”20

17. Here, there is no such actual conflict between the Executive and the

Senate. Thus, the issue of Senate concurrence does not present a justiciable

controversy which the Honorable Court may decide. Otherwise, the

Honorable Court could end up arbitrating constitutional questions in the

abstract and “allocat[ing] constitutional boundaries”21 without a dispute

upon the instance of third parties, however well-intentioned.

18. Inappropriateness of Taxpayer Standing. Petitioners cannot also

sue as taxpayers because the EDCA is neither a tax measure, nor one

primarily directed at the disbursement of public funds. In the absence of a

credible allegation of illegal or unconstitutional disbursement of public

funds, the Honorable Court cannot simply take at face value petitioners’

bare assertion of their right to sue as taxpayers. The Honorable Court

should avoid being goaded into assuming jurisdiction at the say-so of

anyone who pays taxes.

19. The Inapplicability of the “Transcendental Importance” Exception. The

mere invocation of “transcendental importance” cannot also confer

standing on petitioners. In Anak Mindanao Party-List Group v. Executive

Secretary,22 the Honorable Court held that “a party who assails the

constitutionality of a statute must have a direct and personal interest. It

must show not only that the law or any governmental act is invalid, but

also that it sustained or is in immediate danger of sustaining some direct

19 David v. Arroyo, G.R. No. 171396, 03 May 2006. 20 John Hay Peoples Alternative Coalition v. Lim, G. R. No. 119775, 24 October 2003. Italics supplied. 21 Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936. 22 G.R. No. 166052, 29 August 2007.


injury as a result of its enforcement, and not merely that it suffers thereby

in some indefinite way.”23

20. Petitioners cannot use “transcendental importance” to cure

their inability to comply with the constitutional requirement of standing.

As the Honorable Court said, “[c]ourts do not sit to adjudicate mere

academic questions to satisfy scholarly interest therein, however

intellectually solid the problem may be.”24

21. The Honorable Court should already note that the overuse of “transcendental importance” as an exception to the traditional requirements for constitutional litigation has cheapened the value of the Constitution’s safeguards to adjudication—case or controversy, standing, prematurity, political questions, mootness—that have long served to protect the Supreme Court from unnecessary litigation of constitutional questions and potential clashes with the other departments of government.

22. The Supreme Court’s role under the separation of powers requires it to decide only legal disputes. The Court is not the appropriate venue for airing historical grievances or vindicating purely symbolic claims.

II.

EXECUTIVE AGREEMENTS FIND SUPPORT

IN THE CONSTITUTION AND JURISPRUDENCE.

23. The EDCA is an executive agreement that has already

entered into force, as all internal requirements of the Philippines and the

US have already been complied with. This is consistent with the

representations of the parties.

24. President Benigno Aquino III ratified the EDCA on 06 June

2014.25 In the case of the US, it considers the EDCA to have entered into

force on 25 June 2014, as reflected in its diplomatic note of the same

date.26 Finally, the EDCA has been filed with the US Congress pursuant

23 Id. 24 Philippine Association of Universities and Colleges v. Secretary of Education, G.R. No. L-5279, 31 October 1955. 25 See Annex “A”. 26 See Annex “B”.


to the Case-Zablocki Act which requires all international agreements

entered into by the US President to be filed with the US Congress.

25. The characterization of the EDCA as an executive agreement

rests on the concept that the President, as Commander-in-Chief, Chief

Executive, and Chief Architect of Foreign Relations, has the authority to

enter into implementing agreements pursuant to existing treaties.

26. It was argued during oral arguments, however, that the

Constitution does not recognize executive agreements because Article

VII, Section 21 only mentions “treaty” and “international agreement.” It

was argued that the EDCA requires Senate concurrence to be valid and

effective, whether it is considered a treaty or an international agreement.

27. This view flies in the face of the text of the Constitution, the

jurisprudence of this Honorable Court, and the long-standing practice of

the Executive Department.

28. The authority to enter into executive agreements inheres in

the President as Chief Executive under Article VII, Section 21 of the

Constitution. By definition, executive agreements are executive or

implementing devices of pre-existing laws or treaties.27 Thus, entering into

executive agreements is, by nature, an exercise of the executive power of

the President.

29. In fact, the bulk of international agreements entered into by

the Philippines are executive agreements (or agreements which do not

require Senate concurrence such as exchange of notes, memoranda,

protocols, etc.)28 because the conduct of foreign affairs mostly consists of

the implementation of major policy decisions embodied in existing laws

and treaties. Limiting this otherwise constitutionally-guaranteed authority

to enter into executive agreements would fundamentally compromise the

powers of the President as Chief Executive and deprive him of the bulk

of his foreign affairs powers under the Constitution.

30. In the US, a great majority of international agreements are

not treaties but executive agreements, i.e., agreements made by the

executive branch that are not submitted to the Senate for its advice and

27 Gonzales v. Hechanova, G.R. No. L-21897, 22 October 1963; Secretary of Justice v. Lantion, G.R. No. 139465, 18 January 2000. 28 See Annex “C”.


consent. Although executive agreements are not specifically discussed in

the US Constitution, they nonetheless have been considered valid

international compacts under Supreme Court jurisprudence and as a

matter of historical practice.29

31. For purposes of comparison, and to the extent US practice

informs Philippine practice, US recognizes three types of executive

agreements:

(i) the congressional-executive agreement, an international agreement entered into by the President with the approval or authorization of the entire Congress;

(ii) the executive agreement, an international agreement entered into by the President that implements a treaty; and

(iii) the sole executive agreement, an international

agreement entered into by the President on his

own authority.30

32. With the exception of congressional-executive agreements,

Philippine practice coincides with these categories of executive

agreements. This practice is found in Executive Order No. 459,31 which

provides the guidelines in the negotiation and ratification of international

agreements. Executive Order No. 459 grants to the DFA the authority to

determine whether an agreement is an executive agreement or a treaty.32

29 Garcia and Mason¸Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States, Congressional Research Service, 07 June 2012, p. 2. 30 Id at pp. 2-7. 31 Providing for the Guidelines in the Negotiation of International Agreements and Its Ratification. 32 Interestingly, Sen. Miriam Defensor-Santiago, Chairperson of the Senate Committee on Foreign Relations, recognizes this authority of the DFA and the distinction between a treaty and an executive agreement. She said: “…it is the foreign affairs department which determines whether an agreement is an executive agreement on one hand; or a treaty on the other hand. This distinction is important, because while it is claimed that an executive agreement needs only ratification by the President, a treaty needs concurrence by the Senate. This distinction drawn between an executive agreement and a treaty is based on the 1961 case of Commissioner of Customs v. Eastern Sea Trading.” Defensor-Santiago, Procedure for Senate Concurrence to Treaties (2007), p. 2, cited in Malaya and Mendoza-Oblena, Philippine Treaty Law and Practice, 35 INTEGRATED BAR OF THE PHILIPPINES JOURNAL 1 (2010).


33. Constitutional Basis of Executive Agreements. The power of the

President to enter into executive agreements without Senate concurrence

finds textual support in the following provisions of the Constitution—

Article VIII, Section 4(2). All cases involving the constitutionality of

a treaty, international or executive agreement, or law, which shall be

heard by the Supreme Court en banc, and all other cases which under

the Rules of Court are required to be heard en banc, including those

involving the constitutionality, application, or operation of presidential

decrees, proclamations, orders, instructions, ordinances, and other

regulations, shall be decided with the concurrence of a majority of the

Members who actually took part in the deliberations on the issues in

the case and voted thereon.33

Article VIII, Section 5(2)(a). The Supreme Court shall have the

following powers: xxx 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: xxx 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.34

34. The existence of executive agreements as a distinct category

of legal instruments subject to judicial review is indisputable recognition

of the power of the Philippine President to enter into such agreements.

The constitutional mention of executive agreements alongside treaties and

international agreements is clear recognition of their separate ontological

existence.

35. In fact, Article VII, Section 21 mirrors this level of specificity

and distinction, mentioning treaties and international agreements, but

specifically excluding executive agreements. The absence of executive

agreements in the enumeration of specific legal instruments in Article VII,

Section 21 that have to be concurred in by the Senate is textual evidence

that the Constitution excludes executive agreements from such

requirement of Senate concurrence.

36. The practice of entering into executive agreements finds support in

Philippine jurisprudence. In Commissioner of Customs v. Eastern Sea Trading,35 a

33 Emphasis supplied. 34 Emphasis supplied. 35 G.R. No. L-14279, 31 October 1961.


distinction was drawn between a treaty, which requires Senate

concurrence, and an executive agreement, which does not:

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.

… … …

International agreements involving political issues or changes of

national policy and those involving international arrangements 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.36

37. The Court further said that “[t]he right of the Executive to

enter into binding agreements without the necessity of subsequent

Congressional approval has been confirmed by long usage” and that “[t]he

validity of these [executive agreements] has never been seriously

questioned by our courts.” These executive agreements may cover 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.”

38. In Bayan v. Romulo,37 the Honorable Court reiterated the

distinction between treaties and executive agreements, and affirmed the

power of the President to enter into executive agreements without Senate

concurrence. More importantly, the Honorable Court recognized a “treaty-

authorized or a treaty-implementing executive agreement” as one type of executive

agreement.

39. In China National Machinery and Equipment Corp. Group

(CNMEG) v. Santamaria,38 the Honorable Court enumerated the requisites

of an executive agreement pursuant to the Vienna Convention: “(a) the

agreement must be between states; (b) it must be written; and (c) it must

[be] governed by international law.”

36 Italics in the original. 37 G.R. No. 159618, 01 February 2011. 38 G.R. No. 185572, 07 February 2012.


40. In Abaya v. Ebdane,39 the Honorable Court held that an

exchange of notes is considered “a form of an executive agreement, which

becomes binding through executive action without the need of a vote by

the Senate or Congress.”

41. The Honorable Court’s continued affirmation of executive

agreements as a category of international agreements which does not

require Senate concurrence is a recognition that executive agreements are

allowed by the Constitution. It is also a recognition of the impracticability

of submitting each and every international agreement to the Senate for

concurrence. One can imagine the substantial burden on the Senate of

such novel re-interpretation of the Constitution, independent of the

damage to the text of the Constitution itself.

42. In Bayan v. Romulo,40 the Honorable Court has taken judicial

notice of the fact that “the conduct of foreign affairs has become more

complex and the domain of international law wider” such that executive

agreements now cover human rights, the environment and the sea,

defense, trade, scientific cooperation, aviation, atomic energy,

environmental cooperation, peace corps, arms limitation and nuclear

safety, among others.

43. Indeed, practical as well as political considerations militate

against the submission of all types of international agreements to Senate

concurrence. To be realistic, agreements of an administrative nature, of

which hundreds are made annually to implement broad policy decisions,

should not be submitted to the Senate for approval. Otherwise, very soon,

the Senate would be swamped with such a multitude of agreements to

consider that unless it insisted it not be troubled with minor detail, it

would become an administrative organization.41

44. Putting the problem into context, the Senate would have to

contend with the sheer number of international agreements, the wide

scope of their subject matter, and the high level of detail of their

provisions. Our Senate, after concurring in a treaty, cannot be burdened

with formulating the minutest of operational details for its

implementation just as Congress, in the domestic sphere, is not expected

39 G.R. No. 167919, 14 February 2007. 40 Supra note 37. 41 E. Hopson, The Executive Agreement In United States Practice, 12 A.F. L. REV. 252.


to formulate the implementing rules and regulations of the laws it passes.

These are tasks better left to the Executive.

III.

THE EDCA IS AN EXECUTIVE AGREEMENT WHICH IMPLEMENTS THE

MDT AND THE VFA.

45. Consistent with the Honorable Court’s ruling in Commissioner

of Customs v. Eastern Sea Trading,42 the EDCA is an executive agreement

because it simply involves “adjustments of detail” to carry-out the security

policies in the MDT and the VFA.

46. By its own express terms, the EDCA declares itself to be an

implementing agreement of the MDT and the VFA—

Article I

PURPOSE AND SCOPE

1. This Agreement deepens defense cooperation between the Parties

and maintains and develops their individual and collective capacities, in

furtherance of Article II of the MDT, which states that “the Parties

separately and jointly by self-help and mutual aid will maintain and develop

their individual and collective capacity to resist armed attack,” and within the

context of the VFA.

47. Under Article 31 (1) of the Vienna Convention on the Law of

Treaties, “[a] treaty shall be interpreted in good faith in accordance with

the ordinary meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose.”

48. As will be discussed below, the EDCA is an implementing

agreement of the MDT and the VFA not only by its express declaration,

but also by its purpose, scope and operative provisions.

A. The EDCA implements the MDT.

49. In geopolitical terms, the EDCA is the evidence of the

currency and credibility of the defense alliance between the Philippines

and the US. It is the clearest possible communication to everyone in the

region of the vitality of our half-century defense agreement with the US.

42 Supra note 35.


Its operative provisions evince a serious commitment by the US to

entangle itself with the national security interests of the Philippines.

50. In entering into the MDT, the US and the Philippines seek,

among others, to “declare publicly and formally their sense of unity and

their common determination to defend themselves against external armed

attack” and “further strengthen their present efforts to collective defense

for the preservation of peace and security pending the development of a

more comprehensive system of regional security in the Pacific Area.”43

51. The MDT has two important operative principles. The first is

the Principle of Defensive Reaction in Article IV, which involves assistance in

the case of an armed attack on either of the parties in the Pacific Area.

Article IV of the MDT provides—

ARTICLE IV

Each Party recognizes that an armed attack in the Pacific Area on either of

the Parties would be dangerous to its own peace and safety and declares that

it would act to meet the common dangers in accordance with its

constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be

immediately reported to the Security Council of the United Nations. Such

measures shall be terminated when the Security Council has taken the

measures necessary to restore and maintain international peace and security.

52. The second is the Principle of Defensive Preparation in Article II

which states that “[i]n order more effectively to achieve the objective of

this Treaty, the Parties separately and jointly by self-help and mutual aid

will maintain and develop their individual and collective capacity to resist

armed attack.” The primary concern of the EDCA is the Principle of

Defensive Preparation in order to enhance both parties’ abilities, if

required, to operationalize the Principle of Defensive Reaction.

53. As the core of the defense relationship between the

Philippines and the US, the MDT seeks to enhance the strategic and

technological capabilities of the parties’ armed forces. The specific

language of the MDT does not limit its application to situations when

either party is already under armed attack.

43 MDT, Preamble. See list of island territories under Philippine jurisdiction, attached as Annex “D.”


54. The objective of the MDT, as stated in Article II, is to

enhance the parties’ capability to prevent or resist a possible armed attack.

The defensive nature of our constitution and defense agreements means

that our goal is peace-oriented—to prevent war by setting up a defense

structure and signaling a force posture that makes it unwise for an

aggressor to attack the Philippines.

55. The purpose, scope and operative provisions of the EDCA implement

the MDT. Article I of the EDCA provides that it is in “furtherance of

Article II of the MDT, which states that ‘the Parties separately and jointly

by self-help and mutual aid will maintain and develop their individual and

collective capacity to resist armed attack.’”

56. The specific purposes of the EDCA—to “[s]upport[ ] the

Parties’ shared goal of improving interoperability of the Parties’ forces,

and for the Armed Forces of the Philippines (“AFP”), [to address its]

short-term capabilities gaps, promoting long-term modernization, and

helping maintain and develop additional maritime security, maritime

domain awareness, and humanitarian assistance and disaster relief

capabilities”44—properly fall within the MDT’s objective of developing

the defense capabilities of the Philippines and the US. The EDCA

implements the MDT by providing for a mechanism that promotes

optimal cooperation between the US and the Philippines.

B. The EDCA implements the VFA.

57. The Honorable Court ruled in Lim v. Executive Secretary45 and

Nicolas v. Romulo46 that the VFA is an implementing agreement of the

MDT. Consistent with the Principle of Defensive Preparation, the VFA

allows into our territory (1) US troops and personnel,47 (2) equipment,

materials, supplies, and other property,48 and (3) vessels, and aircraft49 so

the US and the Philippines may conduct activities that promote the

MDT’s goal of maintaining and developing the capacity for individual and

collective defense.

44 EDCA, Article I.1.a. 45 G.R. No. 151445, 11 April 2002. 46 Supra note 8. 47 VFA, Article I. 48 VFA, Article VII. 49 VFA, Article VIII.


58. The contention that the VFA is only an agreement relating to troops is

negated by the text of the VFA. The term “forces” is broader than “troops.”

Article I defines “United States personnel” as “United States military and

civilian personnel temporarily in the Philippines in connection with

activities approved by the Philippine Government.” Article VII is explicit

that the VFA relates to the entry or removal of US facilities “in

connection with activities to which [the VFA] applies.” It stipulates that

“United States Government equipment, materials, supplies, and other

property…in the Philippines…in connection with activities to which [the

VFA] applies” may be imported or exported. 50 Article VIII allows the

entry of such facilities as vehicles, vessels and aircraft in Philippine

territory.

59. The authorization of activities under the VFA serves as the operative

license for allowing troops, equipment, supplies, vessels, aircraft, etc. This is

confirmed by the Honorable Court’s decision in Lim when it said that

“[t]he VFA permits United States personnel to engage, on an

impermanent basis, in ‘activities,’ the exact meaning of which was left

undefined.” The Honorable Court ruled that—

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

50 VFA, 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.


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.

… … …

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 … are indeed authorized.

60. The purpose, scope and operative provisions of the EDCA

implement the VFA.

61. Article I of the EDCA provides that its purposes are to

support “the Parties’ shared goal of improving interoperability of the

Parties’ forces, and for the Armed Forces of the Philippines (“AFP”), [to

address its] short-term capabilities gaps, promoting long-term

modernization, and helping maintain and develop additional maritime

security, maritime domain awareness, and humanitarian assistance and

disaster relief capabilities.”

62. The Honorable Court in Lim ruled that these activities are

already covered by the VFA. Under Lim, “maritime security, maritime

domain awareness, and humanitarian assistance and disaster relief

capabilities” are activities that are authorized to be undertaken in the

Philippines under the VFA.

63. Article II of the EDCA reiterates the definition of “United

States personnel” in the VFA which means “United States military and

civilian personnel temporarily in the Philippines in connection with

activities approved by the Philippines.”

64. Article III of the EDCA provides for the “Agreed Locations”

where the Philippines authorizes US 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.”


65. Article IV of the EDCA authorizes the prepositioning and

storing of defense equipment, supplies and materiel. Under Article IV in

relation to Article III of the EDCA, the “prepositioning of equipment,

supplies and materiel” is an “activity” to be approved by the Philippine

Government “through bilateral security mechanisms, such as the MDB

and SEB.”54

66. In sum, what the EDCA does is to enhance the existing

contractual security apparatus between the Philippines and the US, set up

through the MDT and the VFA. It is the duty of the Honorable Court to

allow this security apparatus enough breathing space to respond to

perceived, anticipated, and actual exigencies.

C. The EDCA provides a system that details the conduct of

activities already authorized under the MDT and the VFA.

67. The negotiation of the EDCA and its subsequent ratification

are acts which pertain solely to the President in the lawful exercise of his

executive and diplomatic powers. In fact, even without the EDCA, the

President may rely on his broad powers, as Chief Executive and

Commander-in-Chief,55 to take preparatory and preventive measures

against both external and internal threats to national security.

68. In choosing to enter into the EDCA—an agreement that

provides for a more systematic framework for the fulfilment of the

objectives of the MDT and the VFA—the President has made the

decision to formalize pre-existing licenses into a framework agreement

that clarifies the rights and obligations of the parties. Such decision is in

response to the implementation gaps that the government seeks to

address through the EDCA.

69. For instance, our experience with Typhoon Haiyan, one of

the deadliest natural disasters ever recorded in the country, has made us

54 EDCA, Article IV. 55 Under Article II, Section 3 of the Constitution, the President is the Commander-in-Chief of the Armed Forces of the Philippines (AFP), which is constitutionally designated as “the protector of the people and the State.” Article II, Section 3 of the Constitution provides that “[t]he goal [of the Armed Forces of the Philippines] is to secure the sovereignty of the State and the integrity of the national territory” of the Philippines. Under Article II, Section 4 of the Constitution, the President, as head of State and chief representative of government, has the “prime duty to serve and protect the people.” The National Defense Act also provides that “[t]he national defense policy of the Philippines” is “the preservation of the State.”


acutely aware of the need to develop our humanitarian assistance and

disaster relief (HADR) capability. The aftermath of Typhoon Haiyan saw

the government’s humanitarian relief operation initially hampered by a

number of significant challenges—bureaucratic problems, lack of

transportation, extremely limited communications systems, and damaged

infrastructure.

70. US support following Typhoon Haiyan proved invaluable. A

naval task force from the USS George Washington and elements of the

31st Marine Expeditionary Unit of the US comprised the majority of Joint

Task Force (JTF) 505 which was formed to conduct initial relief

operations dubbed Operation Damayan. US military aircraft provided

reconnaissance of the affected areas, lifted aid workers into the disaster

zones, transported relief supplies, and evacuated those affected by the

typhoon. US Marines assisted with road clearance and with the

distribution of humanitarian assistance. At its peak, US military aircraft

and 12 naval vessels were involved in relief efforts, while nearly 14,000 US

military personnel were deployed directly to the disaster areas. US military

assistance included clearing roads, transporting aid workers, distributing

2,495 tons of relief supplies, and evacuating over 21,000 people.56

71. A significant observation during Typhoon Haiyan is that

despite the resources and technological capabilities of the US forces who

rendered HADR, it took days to get relief efforts underway. This is

because HADR equipment and materiel were not prepositioned, i.e., still

had to be transported to affected areas. This contributed to the delay in

the US forces’ relief efforts.

72. In the absence of the EDCA, coordination for contingency

operations may be hampered by the need to clarify and renegotiate minute

operational details. This includes the determination of the equipment and

supplies needed and their transport and storage, as well as the security and

logistical arrangements for the forces that would conduct the actual

operations.

73. The EDCA seeks to address the foregoing implementation gaps and limitations by providing for mechanisms that will improve the AFP’s capacity to render HADR. One such mechanism is the

56 Lum and Margesson, Typhoon Haiyan (Yolanda): U.S. and International Response to Philippines Disaster, Congressional Research Service, 10 February 2014.


prepositioning of equipment and materiel necessary for the conduct of HADR activities. Article IV of the EDCA provides—

Article IV

EQUIPMENT, SUPPLIES, AND MATERIAL

1. The Philippines hereby authorizes United States forces, through

bilateral security mechanisms, such as the MDB and SEB, to

preposition and store defense equipment, supplies, and materiel

(“prepositioned material”), including, but not limited to, humanitarian

assistance and disaster relief equipment, supplies, and materiel, at

Agreed Locations. United States forces shall notify the AFP in advance

regarding the quantities and delivery schedules of defense equipment,

supplies, and materiel that United States forces intend to preposition in

Agreed Locations, as well as who will make such deliveries.

74. Prepositioning will allow us to respond more rapidly in times

of natural disasters and other crises. Time is of the essence in these

situations and as shown by our experience in Typhoon Haiyan, the

transport of necessary supplies needed to support tens of thousands of

Filipinos—like potable water— is a massive undertaking.

75. To put the problem into context, the equipment necessary to

respond to a contingency would include vehicles of all makes, sizes and

purposes; relocatable and temporary structures such as tents, barracks, or

temporary medical facilities and complex, and specialized equipment for

telecommunications. The transport of these equipment and the

manpower required to assemble, maintain, and operate them, especially in

a large scale operation, would be a huge task that circumstances simply do

not allow without severely limiting the effectivity of the response. To

complicate matters, relief operations, as an activity, requires going through

the complicated processes and consent mechanisms under our bilateral

system, taking much-needed attention away from the situation on the

ground.

76. Prepositioning not only addresses these serious problems but

also allows the Philippine Government to be proactive in responding to

future disasters because it allows the strategic placement of HADR

equipment and supplies at or near areas commonly plagued by typhoons

and other disasters. It also allows the Philippine Government to make

decisions prior to an emergency, providing the authorities the time to


think things through and come up with a better response with all the

relevant data.

77. Furthermore, because the HADR equipment will be in the

Philippines, Philippine personnel are given the invaluable opportunity to

be trained in their operation and maintenance. This redounds to the

benefit of the Philippines, specifically in the increased effectivity of

disaster and relief operations, and generally in the raised competence of

our military forces.

78. Thus, from the Philippine perspective, the objectives of the

EDCA are twofold: (1) externally, to secure the territorial integrity of the

Philippine State and (2) internally, to improve the country’s HADR

capability.

79. In ratifying the EDCA, the President has made a

determination that both its external and internal aspects will advance the

national security of the Philippines. The President must be given the

widest latitude in balancing the nation’s limited options and calibrating his

responses to ensure their maximum intended effect. The Honorable

Court must approach this case with deference to a national security

decision already made.

D. The MDT and the VFA constitute prior, sufficient licenses for

the EDCA.

80. The MDT and the VFA are valid and subsisting international

agreements that already allow the entry of US troops and facilities in the

Philippines under Article XVIII, Section 25 of the Constitution. The

Honorable Court has consistently affirmed the constitutionality of the

MDT and the VFA in BAYAN v. Zamora,58 Lim v. Executive Secretary,59

Nicolas v. Romulo60 and Arigo v. Swift.61

81. Both the MDT and the VFA constitute the prior, sufficient

licenses for the EDCA. The EDCA simply operationalizes and articulates

58 G.R. No. 138570, 10 October 2000. 59 Supra note 45. 60 Supra note 8. 61 G.R. No. 206510, 16 September 2014.


the details of existing policies of the Philippines established under the

MDT and the VFA.62

82. With specific reference to activities to be conducted on Agreed Locations,

the EDCA traces its authority from the VFA.

83. On Agreed Locations. Article V.1 of the EDCA provides that

the Philippines shall retain ownership of and title to Agreed Locations.

This is consistent with Article II of the VFA which recognizes Philippine

sovereignty and jurisdiction over locations within Philippine territory.

84. Number of Agreed Locations. The allegation that the Agreed

Locations are without limit whether in number or size is disproved by the

reality that the decision to choose an Agreed Location occurs within a

highly constrained decision environment.

a) The location must be owned by the Government

through the AFP and this constraint places potential

significant burdens on the Philippines given that a proposed

Agreed Location (if private property or public property not

used for military purposes) will have to be bought, converted

into a military base, and used for military purposes. This

means that, most likely, any Agreed Location will be within

pre-existing military bases.

b) There must be a military necessity for the US to

propose a particular Agreed Location.

c) There must be a corresponding military necessity

on the part of the Philippines to agree to such a proposal.

d) The size and number of such Agreeed Locations

entail financial, operational, and political responsibilities on

both the Philippines and the US. In other words, the choice of a

particular Agreed Location must be geopolitically appropriate,

economically efficient, and politically sound on the basis of the security

concerns of the US and the Philippines.

62 See Annex “E”.


The allegation therefore that the “Philippines and US authorities may

place these so-called Agreed Locations anywhere in the Philippines” is

baseless.63

85. On Activities. Article III.1 of the EDCA authorizes US forces

and vehicles, vessels, and aircraft operated by or for US forces to conduct

a variety of activities with respect to Agreed locations.64 This is not an

independent authorization for new activities. Rather, this only implements

Article I of the VFA which allows US military and civilian personnel

temporarily in the Philippines to engage in activities approved by the

Philippine Government, as well as provisions of the VFA relating to the

importation of materiel65 and movement of vessels and aircraft.66 The

permission system under the EDCA is co-extensive and identical with the

permission system under the VFA.

86. Because the EDCA is an executive agreement that merely

implements the MDT and the VFA, the EDCA does not require Senate

concurrence under Article XVIII, Section 25 of the Constitution. A

Senate concurrence to the EDCA is a legal superfluity.

87. There are some, however, who argue that the EDCA cannot

be couched as an executive agreement because it allegedly allows foreign

military bases and foreign military facilities. Thus, it is claimed that the

EDCA should be in the form of a treaty pursuant to Article XVIII,

Section 25 of the Constitution.

88. A textual reading of the EDCA negates such claim.

89. First, under Article II.4 of the EDCA, all facilities and areas

that may be used and accessed by the US are provided by the Philippine

Government through the AFP. Article V of the EDCA clearly states that

“[t]he Philippines shall retain ownership of and title to Agreed

63 BAYAN Petition, p. 29. 64 “1. With the consideration of the views of the Parties, the Philippines hereby authorizes and agrees that the United Sates forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities; refuelling of aircraft; bunkering of vessels; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and material; deploying forces and material; and such other activities as the Parties may agree.” 65 VFA, Article VII. 66 VFA, Article VIII.


Locations.”67 By clear consequence of law, an Agreed Location is not a

situs of extraterritoriality. It remains Philippine territory and Philippine

property.

90. Second, while the US may be permitted by the Philippines to

construct and improve infrastructure in these Agreed Locations, the US

will not be building in the concept of an owner. They will be building for

the Philippines. This is because under the EDCA “[a]ll buildings, non-

relocatable structures, and assemblies affixed to the land in the Agreed

Locations, including ones altered or improved by US forces, remain

property of the Philippines.”68

91. Third, the use of and access to Philippine military bases by the

US will be restricted, and consistent with our national security interests:

(ii) such use and access will be for activities that

must be approved by the Philippines;69

(iii) such use and access must be on a rotational basis,

intermittent and temporary;70

(iv) the Philippine Government shall have access to

the entire area of the Agreed Locations;71

(v) the Philippine Government shall retain primary

responsibility for security with respect to the

Agreed Locations;72

(vi) the operational control of the US is limited to

construction activities;73 and

(vii) the Agreed Locations will be areas of joint use,

consistent with the concept of responsibility

based on proportionate use of the areas and

facilities.74

67 EDCA, Article V.1. 68 EDCA, Article V.4. 69 EDCA, Article III.4; Art. IV.1. 70 EDCA, Article I.1.b. 71 EDCA, Article III.5. 72 EDCA, Article VI.2. 73 EDCA, Art. III, par. 4. 74 EDCA, Art. III, par. 6.


92. These standards are sufficient to make a reasonable person

conclude that the Agreed Locations are not, will not, and cannot be

converted into foreign military bases or foreign military facilities.

93. No general-purpose license. Only agreements with respect to

foreign military bases or foreign military facilities are constitutionally

required to be concurred in by the Senate. The defining characteristic of a

foreign military base is the general ability of the foreign force to define,

within the base, the nature and scope of activities they wish to engage in.

This plenary ability, this general-purpose license, is found only in the

former Military Bases Agreement of 1947 which gave the US:

[T]he rights, power and authority within the bases which are

necessary for the establishment, use, operation and defense

thereof or appropriate for the control thereof and all the rights,

power and authority within the limits of territorial waters and air

space adjacent to, or in the vicinity of, the bases which are necessary

to provide access to them, or appropriate for their control.75

94. This plenary ability, this general-purpose license, is patently

and demonstrably absent in the EDCA because of the permission system

in place for every activity that will be undertaken by US forces on

Philippine soil, as mandated by the VFA.

95. The Philippines has control over these Agreed Locations not

only because we own them but also because we can set the parameters for

their use and access by the US through the permission system in place. By

this control test, the Agreed Locations are decidedly Philippine, not foreign, Military

Bases.

96. Under the EDCA, as with the VFA, the consent mechanism

is individualized, ensuring that every activity will be limited in scope and

duration.76 This type of consent mechanism is highly protective of

Philippine interests because it provides the Mutual Defense Board (MDB)

and the Security Engagement Board (SEB) real opportunity to scrutinize

every activity that they authorize, develop a feedback mechanism for

previous authorizations, and make sure that every activity fits a larger

national or geopolitical context.

75 Article III. 1, Agreement Between the Republic of the Philippines and the United States of America Concerning Military Bases. (Signed in Manila, March 14, 1947). Emphasis supplied. 76 See Flowchart, attached as Annex “F”.


97. This consent mechanism is dynamic, fluid, and responsive to

varying security contexts as perceived by the current and future Philippine

political and military leaders. This consent mechanism, this permission

system, has been consistently declared valid by this Honorable Court in

Bayan, Lim, Nicolas, and Arigo.

98. Because the EDCA involves an agreement for the

improvement of Philippine military bases and Philippine military facilities,

the EDCA need only be approved by the President of the Philippines as

an executive agreement. It is beyond the purview of Article XVIII,

Section 25. This is because the improvement of Philippine military bases

or facilities is consistent with the principle of Defensive Preparation

found in the MDT and the VFA.

IV.

A SENATE REFERRAL OF THE EDCA WILL CREATE MULTIPLE

FUNDAMENTAL CONSTITUTIONAL PROBLEMS.

99. During the oral arguments on 18 November 2014, Justice

Leonen floated the possibility of referring the EDCA to the Senate for

concurrence under Article XVIII, Section 25 and Article VII, Section 21

of the Constitution.

100. With all due respect, a referral to the Senate will create

multiple fundamental constitutional problems for the Honorable Court,

the President, and the Senate.

101. The Court cannot refer the EDCA to the Senate for consideration

without preliminarily declaring the EDCA unconstitutional for non-compliance with

Article XVIII, Section 25. On the assumption that the Honorable Court

does not dismiss the present petitions for lack of standing or other

jurisdictional grounds, the question is whether the EDCA is an executive

agreement or a treaty, and the task of the Honorable Court is either to

dismiss the petitions or grant them.

102. The Court cannot force a referral to the Senate without authority from

the President. Only the President has the authority to refer international

agreements to the Senate. As held in Pimentel v. Executive Secretary, “it is

within the authority of the President to refuse to submit a treaty to the


Senate.”77 Accordingly, the Honorable Court cannot circumvent such

authority either by ordering the President to make the referral or by doing

so itself.

103. The Senate cannot be compelled to accept a responsibility it did not seek

or does not want to assume. The role of the Senate is limited only to giving or

withholding its consent or concurrence to the ratification.78 In the context

of separation of powers, the silence of the Senate must be understood to

mean nothing less than a positive endorsement of the EDCA as an

executive agreement and as an executive agreement that is good for the

country. We ask the Honorable Court to consider the Senate’s silence as a

nuanced affirmation of the powers of the President.

104. A court-mandated referral to the Senate diminishes the powers of the

President as Commander-in-Chief to act on matters that are within his prerogatives.

The creation of a national defense apparatus and the determination of

activities such as the improvement of Philippine military bases,

prepositioning of defense materials, construction of military runways,

barracks, and ports, are core prerogatives of a Commander-in-Chief.

105. There is only one Commander-in-Chief. Military activities are

meant to consolidate decision-making in one person. The Honorable

Court should therefore seriously reflect on the wisdom of undermining

this decision-making structure in favor of an intervention by the Senate,

an institution that speaks with multiple voices. Now, perhaps more than at

any other time, the powers of our Commander-in-Chief need to be as

potent as it can be.

106. A court-mandated referral to the Senate will result in an international

embarrassment for the President as Sole Organ of Foreign Affairs. The ratification

by the President was a representation to the US that all internal

requirements for the entry into force of the EDCA have already been

complied with. A referral to the Senate contradicts this guaranty of the

President. Even a declaration that the EDCA is ineffectual until ratified

by the Senate achieves the same embarrassing effect for the President and

the country’s standing in the international community.

77 Pimentel v. Executive Secretary, G.R. No. 158088, 6 July 2005. 78 Pimentel v. Executive Secretary, supra note 77.


107. A referral to the Senate is plain and simple delay. It accomplishes

nothing positive other than delay and restrict the President’s ability to

respond to our manifold security concerns at present. Petitioners’

argument against the EDCA is not an argument for referral but an

argument against the EDCA itself. On the assumption that this

Honorable Court can overturn settled and fundamental constitutional

doctrines and compel a referral to the Senate, a favorable action on the

part of the Senate will simply bring the petitioners back to the Supreme

Court to demand the nullification of the EDCA. The potential damage of

such delay to our national security is incalculable.

V.

ASSORTED ISSUES RAISED BY THE PETITIONS

A. On Prepositioning

108. Prepositioning cannot be equated with bases, troops, or facilities in the Constitution. In the context of the EDCA, it is a logistical detail activity geared towards the operational requirements of activities conducted under the VFA.

109. The training activities under the VFA require significant logistical efforts that may be enhanced and made more efficient by the prepositioning of supplies, equipment, and materiel prior to the actual conduct of the training activities, especially for recurring activities.

110. As our most recent experience with Typhoon Ruby shows, prepositioning is essential for HADR operations as it allows rescue and relief operations to have “one foot in” in terms of ability to respond as soon as possible.

111. Prepositioning is also justified as an implementation of the

MDT’s core principle of Defensive Preparation. A country that seriously

intends to defend itself must construct a national defense apparatus and

adopt a force posture that makes it easier to respond in the case of an

actual armed attack. An important component of defensive preparation is

the prepositioning of defense materials.

112. To be sure, the prepositioning of US materiel, equipment,

and supplies is an activity subject to either the approval of the President as

Commander-in-Chief or the consent requirements under the MDT or the


VFA. Any matter of troops in relation to any prepositioning activity is

always subject to the specific rules of the VFA and must always be

approved by the Philippines.

B. On Operational Control and Self Defense

Operational control in general

113. Under Article VI.3 of the EDCA:

United States forces are authorized to exercise all rights and authorities

within Agreed Locations that are necessary for their operational

control or defense, including taking appropriate measures to protect

United States forces and United States contractors. The United States

should coordinate such measures with appropriate authorities of the

Philippines.

114. The operational control granted to the US does not refer to the control

over a military base or activity. Control over the Philippine military base

remains with the Philippine military commander while control over an

activity is exercised by the Philippines when it gives its consent and when

it sets the specific parameters of the activity approved. Operational

control is a characteristic inherent in military command and it pertains to

a much lower lever of control—that of a superior officer over a

subordinate. Under the US Department of Defense glossary cited by

petitioners, operational control refers to:

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 necessary to accomplish the mission.79

115. Within the framework of the permission system under the VFA, a

mission necessarily refers to the activity approved by the MDB/SEB.

116. The AFP has a similar concept. The Glossary of the

Philippine Air Force Manual contains a similar definition:

Transferable command authority that may be exercised by

79 Department of Defense Dictionary of Military and Associated Terms, http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf. Emphasis supplied.


commanders at any echelon at or below the level of combatant

command. Operational control is inherent in combatant command

(command authority) (COCOM). Operational control may be

delegated and 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 necessary to accomplish the mission.80

117. Operational control thus extends only to command over

subordinate forces, as required for the accomplishment of a particular

pre-approved activity. The Philippines, pursuant to the consent

mechanisms in the MDT and the VFA, will always have a say in the

activities and objectives to which operational control relates. Article VI.3

of the EDCA simply restates an inherent attribute of armed forces.

Operational control over construction activities

118. Article III.4 of the EDCA grants to the US operational control for

construction activities:

The Philippines hereby grants to the United States, through bilateral

security mechanisms, such as the MDB and SEB, operational control of

Agreed Locations for construction activities and authority to undertake

such activities on, and make alterations and improvements to, Agreed

Locations. United States forces shall consult on issues regarding such

construction, alterations, and improvements based on the Parties’ shared

intent that the technical requirements and construction standards of any

such projects undertaken by or on behalf of United States forces should

be consistent with the requirements and standards of both Parties.

119. In the case of construction activities to be carried out by US

forces, operational control is granted through bilateral security

mechanisms. This means that US forces cannot dictate the nature and

scope of construction projects—these too would be subject to the

consent mechanisms under the MDT and the VFA. Once the objective

for a particular construction activity is set, e.g., build a barracks with

certain specifications, it makes obvious sense to give the force carrying

out the construction activities the level of control necessary to achieve the

objective.

80 Glossary, Annex “A” of the Philippine Air Force Manual, available at http://www.paf.mil.ph/archive/MANUALS/annexes/Annex%20A%20-%20Glossary.pdf. Emphasis supplied.


120. Even then, when construction activities approved by the

Philippine government are undertaken by the US, operational control is

always limited in terms of scope (only over the actual construction

activity) and area (only where the structure being constructed is located).

Self defense

121. Neither does the authorization for self-defense merit

inordinate concern. Pursuant to the VFA, activities are authorized by the

Philippines through implementing agreements. These implementing

agreements will further define the circumstances and limitations under

which visiting forces may engage in combat. The terms of reference for

military exercises, such as the one considered in Lim v. Executive Secretary,

have consistently prohibited US forces from engaging in combat

operations, except in self-defense.81

122. In addition to the authority provided by the VFA, the right

can also be located in the individual soldier’s right to use force in self-

defense, generally accepted as either stemming from international law, or

the municipal law of the receiving state.82

123. The authorization extended to US forces is no different from

what any contingent of Philippine soldiers ought to be accorded abroad.

Filipino peacekeepers, including the contingent assigned to the United

Nations Disengagement Observer Force in the Golan Heights, operate

under the Handbook on United Nations Multidimensional Peacekeeping

Operations, which recognizes the right to self-defense:

Appropriate use of force. Since peacekeeping operations need the

consent of the parties to a conflict, military forces under UN command

are not usually required to use force beyond that necessary for self-

defence. Self-defence includes the right to protect oneself, other UN

personnel, UN property and any other persons under UN protection.

The use of force by the military component will depend on the

mandate of the peacekeeping operation and the rules of engagement;

sometimes the Security Council will authorize a peacekeeping

operation to use armed force in situations other than in self-defence.

The circumstances under which the operation may use armed force will

then be spelt out in the relevant resolution of the Council. The rules of

81 Supra note 45. 82 DIETER FLECK, ED., THE HANDBOOK OF THE LAW OF VISITING FORCES, 546 (2001).


engagement for the peacekeeping operation will clarify the different

levels of force that can be used in various circumstances, how each

level of force should be used and any authorizations that may need to

be obtained from commanders.83

124. Article VI.3 of the EDCA does not refer to the self-defense of states,

legitimized through appropriate international processes and requiring the determination

of just cause. Rather, the concept is grounded in specific tactical situations

where an armed force is constrained to defend itself through combat. It is

limited in scope (only over the troops being attacked and always subject to

the rules of engagement) and area (the area of conflict). It does not refer

to control over the security of the Philippine military base, the primary

responsibility over which the EDCA explicitly gives to the Philippines.84

125. Even at the tactical level, it should be noted that the use of

force is not an automatic response to any attack. Both US armed forces

and the AFP practice weapons discipline, applying force based on rules of

engagement that can be tailored based on the nature of each mission.

126. The consent mechanisms in place, the limited scope of

operational control, and the explicit provisions of the EDCA granting

primary responsibility over security to the Philippines ensure that the

Philippine government exercises control over its military bases as well as

the activities to be conducted in Philippine soil at the highest levels and

prevent the US, in the guise of security, from assuming overall control.

C. On Telecommunications

127. US access to and use of a telecommunications system does

not require legislative intervention in the form of a legislative franchise

under Article XII, Section 11 of the Constitution. The system referred to

in the EDCA should be distinguished from the telecommunications

services offered to the public and covered by the Telecommunications

Policy Act of the Philippines:

SECTION 3. Definitions and Interpretations. — For purposes of this

Act, the following terms shall be used:

83 Handbook on United Nations Multidimensional Peacekeeping Operations, p. 57. Available at http://www.peacekeepingbestpractices.unlb.org/Pbps/library/Handbook%20on%20UN%20PKOs.pdf 84 Article VI.2.


… … …

b) Public telecommunications entity — any person, firm, partnership

or corporation, government or private, engaged in the provision of

telecommunications services to the public for compensation.85

128. Only telecommunications systems owned or operated by

public telecommunications entities, i.e., those that provide services to the

public for compensation, are required to secure a legislative franchise.86

Clearly, the franchise requirement only applies to telecommunications

providers operating public utilities.

129. The telecommunication system contemplated under the

EDCA will be used exclusively by US and Philippine forces in the context

of activities (such as joint exercises and maneuvers) where inter-operable

communications will be required. By military necessity, these systems will

not be accessible for use by the public, will not be available commercially,

and will only be used for the operational requirements of US and

Philippine armed forces.

130. Finally, the frequencies that will be made avaiable to the US

are only those that are already available to the Philippine military.

D. On Dispute Resolution

131. The BAYAN Petition argues that the EDCA, in providing a

dispute settlement mechanism in Article XI, deprives the Supreme Court

of its jurisdiction under the Constitution.87 Article XI of the EDCA

provides:

RESOLUTION OF DISPUTES

The Parties agree to resolve any dispute arising under this Agreement

exclusively through consultation between the Parties. Disputes and

other matters subject to consultation under this Agreement shall not be

referred to any national or international court, tribunal, or other similar

body, or to any third party for settlement, unless otherwise agreed by

the parties.

85 Republic Act No. 7295. 86 Id. SEC. 16. Franchise. - No person shall commence or conduct the business of being a public telecommunications entity without first obtaining a franchise. 87 BAYAN Petition, pp. 40-43.


132. Under Article VIII, Section 5 of the Constitution, the

Supreme Court has jurisdiction to determine the constitutionality of an

international agreement under Philippine law. However, the Honorable

Court does not have the jurisdiction to settle disputes between states.

Any dispute settlement mechanism between states is subject to their

consent under international law.

133. This does not mean, however, that Philippine courts are

deprived of jurisdiction over other disputes. Neither does it mean that the

Philippines has deprived individuals who are non-parties to the agreement

of recourse to the courts. Only the parties to the EDCA—the Republic of

the Philippines and the US—are bound by Article XI. Thus, only disputes

between the parties in relation to the EDCA are controlled by Article XI.

E. On Nuclear Weapons

134. The EDCA does not violate the “policy of freedom from

nuclear weapons” under Article II, Section 8 of the Constitution. Article

IV.6 of the EDCA provides that “[t]he prepositioned materiel shall not

include nuclear weapons.” All prepositioning must be carried out through

bilateral security mechanisms such as the MDB and the SEB. Through the

MDB and SEB, the Philippine Government will regulate the equipment,

supplies and facilities that may be allowed entry into the Philippines.

Article IV.1 of the EDCA provides—

The Philippines hereby authorizes United States forces, through

bilateral security mechanisms, such as the MDB and SEB, to

preposition and store defense equipment, supplies and materiel

(“prepositioned materiel”), including, but not limited to, humanitarian

assistance and disaster relief equipment, supplies and materiel, at

Agreed Locations. United States forces shall notify the AFP in advance

regarding the quantities and delivery schedules of defense equipment,

supplies and materiel that United States forces intend to preposition in

Agreed Locations, as well as who will make such deliveries.

135. The argument that Article IV.1 of the EDCA only applies to

prepositioned materiel and would not bar the entry of US vessels and

aircraft carrying nuclear weapons is specious and contradicted by the

express provisions of the EDCA. The EDCA is premised on “full respect

for the Philippine Constitution and Philippine laws”88 and the parties’

88 EDCA, Preamble.


obligations under international conventions against chemical and

biological weapons.

136. Activities involving the entry of vessels and aircraft will

require the approval of the Philippine Government. Such approval is

circumscribed by a “policy of freedom from nuclear weapons” under

Article II, Section 8 of the Constitution.

137. Article IX.1 of the EDCA expressly provides that “[t]he

Parties recognize and acknowledge the importance of protection of the

environment and human health and safety in the context of activities

covered by this Agreement and agree to implement this Agreement in a

manner consistent with the protection of the natural environment and

human health and safety…” Article IX.2 also states that “[t]he United

States confirms its intent to respect relevant Philippine environmental,

health, and safety laws, regulations, and standards in the execution of its

policies.”

F. On the applicability of local laws

138. Petitioners maintain that the EDCA violates the Labor Code,

the National Internal Revenue Code, the Local Government Code, and

the National Building Code, among others.

139. Two reasons should sweep aside petitioners’ assorted

objections to the EDCA—

140. A sovereign nation cannot be bound by the laws of another.

The Republic of the Philippines, as a sovereign state, may apply its laws to

its subjects and within its territory. It is inherent in statehood, and a

functional requirement in international relations, that a state’s local laws

cannot bind another sovereign state. This immunity from jurisdiction

applies to contingents of US Armed Forces allowed to enter the country.

The rule in international law is that a foreign armed forces

allowed to enter one’s territory is immune from local jurisdiction,

except to the extent agreed upon. The Status of Forces Agreements

involving foreign military units around the world vary in terms and

conditions, according to the situation of the parties involved, and

reflect their bargaining power. But the principle remains, i.e., the

receiving State can exercise jurisdiction over the forces of the sending


State only to the extent agreed upon by the parties.89

141. The Supreme Court in Bayan v. Romulo recognized that states

may concede aspects of sovereignty through an agreement:

By their nature, treaties and international agreements actually

have a limiting effect on the otherwise encompassing and absolute

nature of sovereignty. By their voluntary act, nations may decide to

surrender or waive some aspects of their state power or agree to limit

the exercise of their otherwise exclusive and absolute jurisdiction. The

usual underlying consideration in this partial surrender may be the

greater benefits derived from a pact or a reciprocal undertaking of one

contracting party to grant the same privileges or immunities to the

other. On the rationale that the Philippines has adopted the generally

accepted principles of international law as part of the law of the land, a

portion of sovereignty may be waived without violating the

Constitution. Such waiver does not amount to an unconstitutional

diminution or deprivation of jurisdiction of Philippine courts.90

142. Without the consent of the US, petitioners cannot insist on

the application of the country’s taxes, labor laws and building codes.

143. With specific reference to taxes, the EDCA contemplates an

assumption of taxes by the Philippine Government and not an exemption from

taxes of the US forces and US contractors. Article VII states:

Article VII

UTILITIES AND COMMUNICATIONS

1. The Philippines hereby grants to United States forces and

United States contractors the use of water, electricity, and other public

utilities on terms and conditions, including rates or charges, no less

favourable than those available to the AFP or the Government of the

Philippines in like circumstances, less charges for taxes and similar fees,

which will be for the account of the Philippine Government. United

States forces’ costs shall be equal to their pro rata share of the use of

such utilities.

144. Under the EDCA, taxes on the use of water, electricity, and

other public utilities by the US forces and US contractors will be for the

89 Nicolas v. Romulo, supra note 8, citing DIETER FLECK, ED., THE HANDBOOK OF THE LAW

OF VISITING FORCES (2001). 90 Supra note 37.


account of the Philippine Government. This is clearly not a tax

exemption, which, under the Constitution, can only be granted by

Congress.91

145. The assumption of taxes by the government is not unknown

in this jurisdiction. Tax assumption clauses are commonly found in Build-

Operate-Transfer (BOT) contracts with the government as an incentive

for private corporations to take part and invest in Philippine industries.92

It is reasonable to assume that the assumption of taxes by the Philippine

Government was in exchange for the greater benefits that the country will

derive from the agreement.

PRAYER

WHEREFORE, it is respectfully prayed that:

1) The application for a Temporary Restraining Order and/or Writ

of Preliminary Injunction be DENIED; and

2) The petitions be DISMISSED for LACK OF MERIT.

Respondents pray for other just and equitable reliefs under the

premises.

Manila, 15 December 2014.

OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo St., Legaspi Village

1229 Makati City Tel. No.: 8186301 to 09 (Trunkline)

Fax No.: 8176037 Website: www.osg.gov.ph Email: [email protected]

91 Article VI, Section 28(4): No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. 92 See National Power Corporation v. Province of Quezon, G.R. No. 171586, 15 July 2009.

http://www.osg.gov.ph/

mailto:[email protected]


FLORIN T. HILBAY Acting Solicitor General

Roll No. 44957 IBP Lifetime No. 08505

MCLE Exemption No. IV-001068, 5-14-13

EMERSON S. BAÑEZ Associate Solicitor Roll No. 56723

IBP No. 953502, 01-08-14 MCLE Compliance No. V-0002900, 07-09-14

MAXIMO PAULINO T. SISON III Roll No. 59301

IBP Lifetime No. 012977 MCLE Compliance No. N/A

MARIA GRACIELA D. BASE Associate Solicitor Roll No. 61899

IBP No. 954310, 1-9-14 MCLE Compliance No. N/A

GERARDO E. MENDOZA

Associate Solicitor Roll No. 62511

IBP No. 965933, 4-3-2014 MCLE Compliance No. V-0003278

MELBOURNE D. PANA

Associate Solicitor Roll No. 61900

IBP No. 954309, 1-9-14 MCLE Compliance No. N/A


RAMON ANTONIO D. PANDAN Associate Solicitor Roll No. 63042

IBP No. 96846, 4-15-14

MCLE Compliance No. N/A

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IBP No. 967967, 3-31-14

MCLE Compliance No. N/A

MA. GOLDA GIGI G. MIÑOZA Associate Solicitor Roll No. 63462

IBP No. 968275

MCLE Compliance No. V-0004533, 11-11-14

Copy Furnished: HARRY L. ROQUE ROMMEL R. BAGARES ETHEL C. AVISADO Roque & Butuyan Law Offices Counsel for Petitioners in G.R. No. 212426 1904 Antel Corporate Center 121 Valero St., Salcedo Village Makati City RACHEL F. PASTORES AMYLYN B. SATO FRANCIS ANTHONY P. PRINCIPE SANDRA JILL S. SANTOS CARLOS A. MONTEMAYOR, JR. Public Interest Law Center Counsel for Petitioners in G.R. No. 212444 4/F Kajia Bldg., 7836 Makati Avenue MARIA KRISTINA C. CONTI MANEEKA ASISTOL SARZA National Union of People’s Lawyers Counsel for Petitioners in G.R. No. 212444 3/F Erythrina Building No. 1 Matatag cor. Maaralin Sts. Central District, Quezon City REMEGIO D. SALADERO, JR. NOEL V. NERI VICENTE JAIME M. TOPACIO Pro-Labor Legal Assistance Center Counsel for Petitioners-in-Intervention No. 33-B E. Rodriguez Sr. Avenue, Quezon City RENE A.V. SAGUISAG, SR. Counsel for Petitioner-in-Intervention 4045 Bigasan St., Palanan 1235 Makati

Executive Secretary PAQUITO N. OCHOA, JR. Office of the President, Malacañan Manila Secretary VOLTAIRE GAZMIN Department of National Defense DND Bldg., Segundo Avenue Camp General Emilio Aguinaldo, Quezon City Secretary ALBERT DEL ROSARIO Department of Foreign Affairs DFA Bldg., Roxas Blvd., Pasay City Secretary FLORENCIO ABAD Department of Budget and Management J.P. Laurel Sr. St., Malacañan Palace, Manila General EMMANUEL T. BAUTISTA Office of the Chief of Staff, Armed Forces of the Philippines DND Bldg., Segundo Avenue Camp General Emilio Aguinaldo, Quezon City Undersecretary FRANCISCO BARAAN III Department of Justice Padre Faura St., Legaspi Village Makati City Undersecretary PIO LORENZO BATINO Assistant Secretary RAYMOND JOSE QUILOP Department of National Defense DND Bldg., Segundo Avenue Camp General Emilio Aguinaldo, Quezon City Ambassador LOURDES YPARRAGUIRRE DFA Bldg., 2330 Roxas Blvd., Pasay City Ambassador J. EDUARDO MALAYA DFA Bldg., 2330 Roxas Blvd., Pasay City

EXPLANATION (Pursuant to Rule 13, Section 11 of the

1997 Rules of Civil Procedure) This Memorandum is being served by registered mail due to lack of sufficient personnel in the Office of the Solicitor General to effect personal service.

RAMON ANTONIO D. PANDAN Associate Solicitor

Documents

EDCA Memorandum